COURT OF APPEALS OF VIRGINIA
Present: Judges Baker, Annunziata and Senior Judge Cole
Argued by teleconference
JOHN DAVID LOVELACE
OPINION BY
v. Record No. 1075-97-2 JUDGE JOSEPH E. BAKER
JUNE 16, 1998
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HALIFAX COUNTY
William L. Wellons, Judge
Joseph A. Sanzone (Joseph A. Sanzone
Associates, P.C., on brief), for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
John David Lovelace (appellant) appeals his bench trial
convictions by the Circuit Court of Halifax County (trial court)
for possession of marijuana and possession of cocaine with intent
to distribute. He contends the trial court erred in (1) denying
his motion to suppress and (2) finding the evidence sufficient to
prove he intended to distribute the cocaine. For the reasons
that follow, we affirm the convictions.
At about 10:00 p.m. on August 23, 1996, Halifax County
Deputies Sweeny and Womack saw appellant standing near a
convenience store in an area "known as a[n] open air drug
market." He was drinking from a green glass bottle. Deputy
Sweeny believed the bottle contained beer, and he told appellant
to drop the bottle and lie face down on the ground. "[S]everal
other officers converg[ed] on the lot at the same time." "[D]ue
to the number of people on the lot," Officer Womack thought it
was in the officers' best interest "to put these subjects down on
the ground so we could handle the situation if somebody wanted to
act up." Womack testified that appellant was being detained
because of the open container of beer.
When Womack told appellant to drop the bottle and lie face
down on the ground, appellant dropped and broke the bottle. Near
appellant's feet, Deputy Womack observed several open bottles of
beer and five unopen bottles of beer in a carton. Womack had
already seen a bottle hit a car beside appellant as Womack was
approaching. Womack smelled the odor of alcohol as he was
talking to appellant, although he could not say whether the odor
was coming from appellant or from the bottle that had been broken
nearby. The bottle which hit the car came from the area where
appellant was standing, but Womack did not see whether appellant
threw it.
Once appellant was on the ground, Womack asked him whether
he had any drugs or guns. Appellant did not reply. Womack then
patted appellant down and detected "something in his pocket
. . . [that] felt like a bag." "[D]uring [Womack's] experience
[he'd] found drugs before on people, and sometimes they carried
it in these kind[s] of bags. . . . [He] didn't know if it was a
plastic bag or what at that time, but [he] felt some lumps and
. . . felt it to be squooshy." Womack could not tell what was in
the bag; however, he retrieved the bag, which was later
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determined to contain 2.38 grams of crack cocaine rocks and 2.96
grams of marijuana. He placed appellant under arrest for
possession of marijuana and cocaine. In appellant's possession,
Womack found a black pouch containing $121 and a razor blade. In
appellant's pocket, he found $171.30, made up mostly of ten- and
twenty-dollar bills.
Womack, who had been a narcotics investigator for about a
year and had participated in the investigation and prosecution of
thirty-five to forty cocaine cases, was accepted by the court as
an expert. He testified that the bag of cocaine found on
appellant was "cut up [for sale in dollar amounts of] twenties
. . . [and] forties." Womack believed that the quantity of
cocaine was inconsistent with personal use and consistent with
distribution. Although the form of cocaine found on appellant
would usually be smoked, Womack found no smoking devices on
appellant or in his car. Womack further testified that
possession of the money in ten- and twenty-dollar bills also was
"consistent with distribution of crack cocaine."
Appellant moved to suppress the evidence, claiming he was
illegally searched and seized without probable cause to arrest
because the content of the open containers was not confirmed and,
in fact, he had not been arrested. Even if the officers had
probable cause to arrest for the alcohol offense, he contended
the offense required that he be released on a summons without a
custodial arrest and that Officer Womack was not entitled to
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conduct a search incident to arrest under those circumstances.
Moreover, appellant argued that although the patdown may have
been appropriate, the complete search was not permitted because
Womack could not identify the plastic bag or its contents by feel
and Womack did not believe the item was a gun. The trial court
denied the motion to suppress, holding that the evidence was
sufficient to give the officers probable cause to conduct the
search.
Motion to Suppress
In reviewing a trial court's denial of a motion to suppress,
"the burden is upon [appellant] to show that this ruling, when
the evidence is considered most favorably to the Commonwealth,
constituted reversible error." Fore v. Commonwealth, 220 Va.
1007, 1010, 265 S.E.2d 729, 731 (1980). "Ultimate questions of
reasonable suspicion and probable cause to make a warrantless
search" involve issues of both law and fact and are reviewed de
novo on appeal. See Ornelas v. United States, 517 U.S. 690, 691
(1996). "In performing such analysis, we are bound by the trial
court's findings of historical fact unless 'plainly wrong' or
without evidence to support them[,] and we give due weight to the
inferences drawn from those facts by resident judges and local
law enforcement officers." McGee v. Commonwealth, 25 Va. App.
193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing Ornelas,
517 U.S. at 699).
As a general rule of constitutional law, an officer properly
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may make a warrantless arrest if he has probable cause to believe
the arrestee has committed a crime, see Thompson v. Commonwealth,
10 Va. App. 117, 121, 390 S.E.2d 198, 201 (1990) (citing United
States v. Watson, 423 U.S. 411, 423 (1976)), and the officer may
search the individual incident to that lawful arrest. See
DePriest v. Commonwealth, 4 Va. App. 577, 583, 359 S.E.2d 540,
543 (1987) (citing Illinois v. Lafayette, 462 U.S. 640, 646
(1983)). However, if probable cause is lacking, the arrest is
illegal, and any evidence seized pursuant to that arrest is
subject to exclusion under Mapp v. Ohio, 367 U.S. 643 (1961).
We hold that Officer Womack's search of appellant's pocket
did not violate the Fourth Amendment because probable cause
existed to arrest appellant for drinking from an open container
of alcohol in violation of Code § 4.1-308, a Class 4 misdemeanor.
The existence of probable cause to arrest gave Womack
constitutional authority to conduct a full search of appellant's
person incident to that arrest.
"'The probable cause standard does not require actual
knowledge. "Only the probability, and not a prima facie showing,
of criminal activity is the standard of probable cause."'"
Quigley v. Commonwealth, 14 Va. App. 28, 34, 414 S.E.2d 851, 855
(1992) (quoting Wescott v. Commonwealth, 216 Va. 123, 126, 216
S.E.2d 60, 63 (1975) (citation omitted)).
"As an articulated legal standard, probable
cause deals with probabilities concerning the
factual and practical considerations in
everyday life as perceived by reasonable and
prudent persons. It is not predicated upon a
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clinical analysis applied by legal
technicians. In determining whether probable
cause exists courts will test what the
totality of the circumstances meant to police
officers trained in analyzing the observed
conduct for purposes of crime control."
DePriest, 4 Va. App. at 584, 359 S.E.2d at 543 (quoting
Washington v. Commonwealth, 219 Va. 857, 862, 252 S.E.2d 326, 329
(1979)) (other citations omitted).
Here, the officers saw appellant drinking from a green
bottle. Although that bottle was broken, the officers found at
appellant's feet several open bottles of beer and five unopen
bottles in a carton. Officer Womack smelled the odor of alcohol
as he talked to appellant. This evidence was sufficient to give
the officers probable cause to arrest appellant for drinking
alcohol in public. The officers' failure to cite appellant for
that offense and the Commonwealth's failure to provide evidence
to support a conviction for that offense are not dispositive
factors because probable cause deals with probabilities rather
than certainties.
In addition, the officers' subjective motivations in
searching appellant are not relevant in this case. "Subjective
intentions play no role in ordinary, probable-cause Fourth
Amendment analysis." Whren v. United States, 517 U.S. 806, 813
(1996). "'[T]hat the officer does not have the state of mind
which is hypothecated by the reasons which provide the legal
justification for the officer's action does not invalidate the
action taken as long as the circumstances, viewed objectively,
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justify that action.'" Id. (quoting Scott v. United States, 436
U.S. 128, 138 (1978)) (emphasis added); see also Ohio v.
Robinette, 117 S. Ct. 417, 420-21 (1996); Limonja v.
Commonwealth, 8 Va. App. 532, 537-38, 383 S.E.2d 476, 479-80
(1989).
Despite appellant's argument to the contrary, we hold that
Code § 19.2-74 does not delimit the officers' constitutional
authority to search. That code section provides, in relevant
part, that where a "person is detained by or is in the custody of
an arresting officer" for a violation punishable as a Class 4
misdemeanor or any other misdemeanor for which he cannot receive
a jail sentence,
the arresting officer shall take the name and
address of such person and issue a summons or
otherwise notify him in writing to appear at
a time and place to be specified in such
summons or notice. Upon the giving of such
person of his written promise to appear at
such time and place, the officer shall
forthwith release him from custody. However,
if any such person shall fail or refuse to
discontinue the unlawful act, the officer may
proceed according to the provisions of
§ 19.2-82.
Code § 19.2-74(A)(2) (emphasis added). Code § 19.2-74,
therefore, clearly permits an officer to "detain[]" an alleged
violator or take him into "custody" long enough to issue a
summons.
In addition, that code section contains no language
nullifying the officer's ability to search based on the existence
of probable cause. We hold that the existence of probable cause
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to arrest pursuant to the Constitution is both necessary and
sufficient. See United States v. Ricard, 563 F.2d 45, 49 (2d
Cir. 1977) (holding that probable cause to arrest permitted
officer to conduct full search without effecting full custodial
arrest), cert. denied, 435 U.S. 916 (1978); State v. Doran, 563
N.W.2d 620, 622 (Iowa 1997); State v. Greenslit, 559 A.2d 672,
674 (Vt. 1989); State v. King, 418 N.W.2d 11, 13 (Wis. Ct. App.
1987). The Constitution does not require a full custodial arrest
to permit a complete search of the arrestee; nor does Code
§ 19.2-74 impose such a requirement. Although a state is free to
provide safeguards above and beyond those guaranteed by the
United States Constitution, see Penn v. Commonwealth, 13 Va. App.
399, 407, 412 S.E.2d 189, 193-94 (1991), aff'd per curiam, 244
Va. 218, 420 S.E.2d 713 (1992), nothing in Code § 19.2-74
indicates the legislature's intent to abrogate the authority to
search based on probable cause. Finally, even if the legislature
did so intend, violation of the statute would not require
suppression of evidence obtained in contravention of its terms,
absent express provision to the contrary by the legislature. See
Thompson, 10 Va. App. at 122, 390 S.E.2d at 201 ("While
violations of state procedural statutes are viewed with disfavor,
neither the Virginia Supreme Court nor the legislature has
adopted an exclusionary rule for such violations.") (citation
omitted).
Here, Officer Womack took appellant into custody on the open
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container violation, for which he had probable cause to arrest.
Once appellant was in custody, that probable cause permitted
Womack to search appellant. Pursuant to that lawful search,
Womack found cocaine and marijuana, the possession of which
constituted a felony.
Accordingly, we hold that the search of appellant was proper
and that the trial court properly denied appellant's motion to
suppress.
Intent to Distribute
In reviewing the sufficiency of the evidence, we examine the
record in the light most favorable to the Commonwealth, granting
to it all reasonable inferences fairly deducible therefrom. See
Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418
(1987). The judgment of a trial court will be disturbed only if
plainly wrong or without evidence to support it. See id. The
credibility of a witness, the weight accorded the testimony, and
the inferences to be drawn from proven facts are matters to be
determined by the fact finder. See Long v. Commonwealth, 8 Va.
App. 194, 199, 379 S.E.2d 473, 476 (1989).
Circumstantial evidence may establish the elements of a
crime, provided it excludes every reasonable hypothesis of
innocence. See, e.g., Tucker v. Commonwealth, 18 Va. App. 141,
143, 442 S.E.2d 419, 420 (1994). However, "the Commonwealth need
only exclude reasonable hypotheses of innocence that flow from
the evidence, not those that spring from the imagination of the
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defendant." Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433
S.E.2d 27, 29 (1993). Whether a hypothesis of innocence is
reasonable is a question of fact, see Cantrell v. Commonwealth, 7
Va. App. 269, 290, 373 S.E.2d 328, 339 (1988), and a finding by
the trial court is binding on appeal unless plainly wrong. See
Martin, 4 Va. App. at 443, 358 S.E.2d at 418.
"Because direct proof of intent [to distribute drugs] is
often impossible, it must be shown by circumstantial evidence."
Servis v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165
(1988). Such evidence may include the quantity of drugs and cash
possessed and whether the accused used drugs. See Poindexter v.
Commonwealth, 16 Va. App. 730, 734-35, 432 S.E.2d 527, 530
(1993). 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 factors indicating an
intent to distribute. See Colbert v. Commonwealth, 219 Va. 1, 3,
4, 244 S.E.2d 748, 749, 749 (1978).
Here, appellant possessed 2.38 grams of crack cocaine rocks
and 2.96 grams of marijuana, $292.30 in cash, at least $170 of
which comprised ten- and twenty-dollar bills, and a razor blade.
Officer Womack, qualified as an expert, testified that the
quantity of cocaine found was inconsistent with personal use and
consistent with distribution. In addition, Womack testified that
appellant's possession of the money in ten- and twenty-dollar
bills was "consistent with distribution of crack cocaine."
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Finally, although the type of cocaine found on appellant was
usually smoked, police found no evidence of personal use of
either the cocaine or the marijuana on appellant or in his nearby
vehicle. On cross-examination, Womack said the quantity of
cocaine appellant possessed could possibly have been "used in a
day" and that appellant could have purchased the drugs as they
were packaged and could have possessed the razor blade for
personal use of the cocaine rather than for distribution.
However, no evidence in the record proved that appellant
personally used cocaine. Therefore, the only reasonable
hypothesis flowing from the evidence is that appellant intended
to distribute the cocaine.
For these reasons, we hold that the trial court did not err
in denying appellant's motion to suppress and in finding the
evidence sufficient to prove he intended to distribute the
cocaine.
Affirmed.
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