White v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Moon, Judges Benton, Coleman, Willis,
Elder, Bray, Fitzpatrick, Annunziata and Overton
Argued at Richmond, Virginia

DARRYL LEE WHITE
OPINION BY
v. Record No. 1819-95-3 CHIEF JUDGE NORMAN K. MOON
OCTOBER 28, 1997
COMMONWEALTH OF VIRGINIA

UPON REHEARING EN BANC

FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Richard S. Miller, Judge

B. Leigh Drewry, Jr., for appellant.

Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.

Darryl Lee White was convicted of possession of cocaine with

intent to distribute in violation of Code § 18.2-248. On

February 18, 1997, a panel of this Court, with one judge

dissenting, affirmed the conviction. See White v. Commonwealth,

24 Va. App. 227, 481 S.E.2d 486 (1997). Upon rehearing en banc,
White raises two questions: (1) whether the police lacked

probable cause to conduct a warrantless search and seizure; and

(2) whether the evidence is sufficient to support his conviction.

Finding no error, we affirm.

On December 30, 1994, at approximately 9:15 p.m., Officers

Nesselroade, Soyers, and Riley were on duty riding together in a

patrol car in Lynchburg, Virginia. Nesselroade observed a group

of five to ten males in a semicircle located between 613 and 615

Federal Street. One of the men was standing with his back to the
street facing the other men. The group was standing next to a

beige Cadillac which Nesselroade recognized as belonging to

White.

As the officers approached, they heard a shout of "5-0," a

street term for police. The man facing the group turned around

and, from a distance of approximately twenty-five feet,

Nesselroade recognized White. The entire group of men ran,

leaving the Cadillac's motor running and one of its doors wide

open. Nesselroade watched White and observed that his hand was

clenched and that as he ran he made a downward motion and opened

his fist. A large white object fell from his hand and onto the

ground. Nesselroade proceeded to that spot, retrieved the

object, which from his experience appeared to be a piece of

cocaine, and placed it in his shirt pocket. The substance was

later determined to be 1.54 grams of cocaine.
While Nesselroade retrieved the cocaine, Soyers and Riley

followed the men who had run behind the residences. When the

officers reached the rear of the residences, they found White

sitting on the back steps of one of the houses. The officers had

White stand and patted him down for weapons. Soyers knew White

and called in a warrant check. Nesselroade heard the warrant

check on his radio and before a response was received, he radioed

Soyers and asked if they had custody of White behind the house.

Soyers replied affirmatively. Nesselroade testified, "I told

them to bring him around front, that I got the dope that he

dropped."

- 2 -
 Soyers and Riley took White to the front of the residence

where Nesselroade arrested White on the basis of the cocaine he

had observed White drop. Nesselroade searched White and either

Riley or Soyers handed Nesselroade a stocking cap they had found

on White which contained $581 in various denominations.

Nesselroade also found a pager on White.

After searching White, Nesselroade looked into the beige

Cadillac near where White and the other men had been standing and

which Nesselroade testified he recognized as White's vehicle.

Nesselroade saw what he believed to be crack cocaine shavings on

the seat and floorboard. Entering the car to recover the

shavings, Nesselroade also discovered, underneath an armrest, a

digital scale partially wrapped in a brown paper bag.
Nesselroade testified that upon questioning, White stated

that crack cocaine was present where he had been standing, that

he knew different ways to weigh it, that he was familiar with the

price of crack cocaine, and that it did sell for as much as the

police believed. White also stated that the scale in the car did

not belong to him. Nesselroade testified that White had not been

informed that a scale had been found in the Cadillac prior to the

time that White made the statement that he did not own the scale.

Search and Seizure

White argues that his initial detention by Soyers and Riley

was an unreasonable seizure of his person and that, consequently,

the pager, the stocking cap and its contents, and his statement

should have been excluded as fruits of an unlawful search and
- 3 -
seizure.

In considering a trial court's ruling on a suppression

motion, we view the evidence in the light most favorable to the

Commonwealth, and the decision of the trial judge will not be

disturbed unless plainly wrong. Greene v. Commonwealth, 17 Va.

App. 606, 608, 440 S.E.2d 138, 139 (1994).

Here, White was initially detained by officers executing a

Terry stop and frisk. At the point that the officers approached

White and patted him down, the record indicates that they had no

information from Nesselroade. Consequently, to have been a

lawful Terry stop and frisk, the officers' own observations and
knowledge must have provided them with an articulable and

reasonable suspicion of White's involvement in criminal activity.

Terry v. Ohio, 392 U.S. 1, 21 (1968).

Officers Soyers and Riley observed a group of men gathered

around a car at approximately 9:15 p.m. on a winter night. They

heard someone yell a street term for the police and then saw the

men run behind a house, leaving the engine of the Cadillac

running and one of its doors wide open. Officers Soyers and

Riley chased the group of men behind the houses and found White

sitting on the steps of one of the houses, despite the time of

the year and the time of day. Officer Soyers recognized White

from previous encounters with him and called in a warrant check.

Viewed together, this evidence supports a finding that

Officers Soyers and Riley had an articulable and reasonable

suspicion that the group had been engaged in some criminal
- 4 -
activity and that White was a member of the group. See id. at

21; Thomas v. Commonwealth, 16 Va. App. 851, 856, 434 S.E.2d 319,

322 (1993) (close physical proximity and close proximity in time

support a finding of an articulable suspicion sufficient to

justify a Terry stop); Smith v. Commonwealth, 12 Va. App. 1100,

1103, 407 S.E.2d 49, 51-52 (1991) (noting that "circumstances we

may consider [in a Terry-stop analysis] include 'the

"characteristics of the area" where the stop occurs, [and] the

time of the stop, whether late at night or not'") (quoting
Williams v. Commonwealth, 4 Va. App. 53, 67, 354 S.E.2d 79, 87

(1987)); Richards v. Commonwealth, 8 Va. App. 612, 616, 383

S.E.2d 268, 271 (1989) ("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.") (citing United States v. Brignoni-Ponce, 422 U.S.

873, 884-85 (1975)). We therefore hold that the trial court's

findings are supported by the evidence.
Sufficiency of the Evidence

White asserts that the lighting was insufficient and the

distance too great for Nesselroade to have observed what, if

anything, White dropped. He further contends that Nesselroade

was looking for drug dealers and that "[Nesselroade's] previous

encounter with [White], his expectations, fears, and

anticipations . . . color[ed] his interpretation in an ambiguous

situation." On appeal, the evidence is to be viewed in the light

most favorable to the Commonwealth, granting to it all reasonable

- 5 -
inferences fairly deducible therefrom. Higginbotham v.

Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 537 (1975). The

trial court's verdict will not be disturbed on appeal unless it

is plainly wrong or without evidence to support it. Stockton v.

Commonwealth, 227 Va. 124, 145, 314 S.E.2d 371, 385, cert.

denied, 469 U.S. 873 (1984).

Here, there is sufficient evidence to support the trial

court's finding that White possessed cocaine. Nesselroade

testified that he observed White possess and discard cocaine. It

is for the trial court to make determinations of credibility.
Myers v. Commonwealth, 11 Va. App. 634, 400 S.E.2d 803 (1991).

In addition to Nesselroade's direct observations, the record

indicates that White made statements to the police indicating

that crack cocaine was present at the time he was observed.

The record also contains evidence sufficient to support the

trial court's finding that White possessed cocaine with intent to

distribute. "Because direct proof of intent 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).

Circumstantial proof of a defendant's intent includes the

quantity of the drug discovered, the packaging of the drugs, and

the presence or absence of drug paraphernalia. Id. at 524-25,

371 S.E.2d at 165.

Here, White was found to have possessed 1.54 grams of

cocaine, a relatively small amount. "'Possession of a small

quantity creates an inference that the drug is for personal

- 6 -
use.'" Id. at 524, 371 S.E.2d at 165 (quoting Monroe v.

Commonwealth, 4 Va. App. 154, 156, 355 S.E.2d 336, 337 (1987)).

Nevertheless, possession of a small amount of a drug, "when

considered with other circumstances, may be sufficient to

establish an intent to distribute." Id. Possession of drug

paraphernalia and significant amounts of money are among the

circumstances which may serve to negate an inference of

possession for personal use. In addition to 1.54 grams of

cocaine, evidence was presented that White possessed a pager,

$581 in cash, and an electronic scale. We have regularly

recognized pagers as tools of the drug trade. See Wilkins v.

Commonwealth, 18 Va. App. 293, 296, 443 S.E.2d 440, 442 (1994).

Possession of a large sum of cash, especially in small

denominations, is also regularly recognized as a factor

indicating intent to distribute. See Colbert v. Commonwealth,

219 Va. 1, 4, 244 S.E.2d 748, 748-49 (1978); Glenn v.

Commonwealth, 10 Va. App. 150, 155, 390 S.E.2d 505, 508 (1990).

White's possession of an electronic scale concealed in his car

and the crack cocaine shavings also found in the car provide a

sufficient basis to support an inference that White was engaged

in cutting up and weighing cocaine in his car. In view of

White's possession of cocaine, the drug paraphernalia, and the

large sum of money, we find the record sufficient to support the

- 7 -
trial court's finding that White possessed cocaine with intent to

distribute. We therefore affirm.

Affirmed.

- 8 -
Elder, J., with whom Benton, J., joins, dissenting.

I disagree that the officers who detained White had an

articulable, reasonable suspicion that "White was a member of the

group" that drew the officers' attention. The testimony given at

the suppression hearing indicates that, at the time Officers

Soyers and Riley approached White on the steps, the officers

could only speculate that White was associated with the group of

men they had observed near the street.
I would hold that the initial stop of White by Officers

Soyers and Riley was unlawful and that references to the evidence

obtained from it, a stocking cap and $581 in cash, should have

been suppressed. I would also hold that Officer Nesselroade's

subsequent arrest of White, though based on probable cause, was

made possible by the initial illegal seizure and that references

to the pager obtained during the search incident to this arrest

should have been excluded under the "fruit of the poisonous tree"

doctrine. Finally, I would hold that the erroneous admission of

this evidence was not harmless.

I.

First, I would hold that the initial Terry stop of White was

illegal and that the evidence acquired from it should have been

suppressed. Only Officers Nesselroade and Soyers testified at

the suppression hearing. Their testimony indicates that the

three officers drove toward a group of males congregated in a

semicircle on property adjacent to a street. The officers heard

someone yell a slang term for "police" and watched as the group

- 9 -
quickly dispersed. The officers pulled over to the curb and

pursued on foot various members of the group. Officer Soyers

testified that he saw members of the group run behind the

residence and that he and Officer Riley followed them. Officer

Soyers testified that when he and Officer Riley arrived behind

the residence, they noticed White "sitting on some steps."

Officer Soyers testified that he knew White from previous

encounters. The two officers "had [White] stand up and patted

him down for weapons." At some point during the seizure of White

behind the house, the officers recovered the stocking cap filled

with cash. Although Officer Nesselroade testified that he

recognized White and saw him drop "a large white piece of

something" onto the ground as he ran from the street, Officer

Soyers testified that "Officer Nesselroade never gave [him] any

information" before he and Officer Riley seized White. No

testimony established that Officers Soyers and Riley saw White

run from the scene.
Based on these circumstances, I would hold that Officers

Soyers and Riley lacked a reasonable, articulable suspicion that

White had been engaged in criminal activity. Nothing known to

the officers at the time they seized White distinguished him from

a neighborhood resident who was merely sitting behind a

residence. Officer Soyers did not testify that he saw White

among the group of individuals congregated near the street, and

nothing in his testimony indicated an articulable basis for his

belief that White was a member of the group. Instead, Officer

- 10 -
Soyers testified that he noticed White on the back steps,

recognized him from previous encounters, and decided with Officer

Riley to stop and frisk him. Based on these facts, I would hold

that the decision to seize White was founded on nothing more than

a hunch.

The majority places great weight on the date and time the

seizure occurred and on White's proximity to the street where

Officers Soyers and Riley had observed the group. It implies

that, based on these facts, the officers could reasonably exclude

the likelihood that White was a resident or visitor of the house

who was innocently sitting on the steps. However, the mere fact

that an officer pursuing unknown members of a group encounters a

person sitting behind a nearby residence during the nighttime in
December does not justify that officer's suspicion that the

person behind the residence was a member of the group.

Application of this reasoning would allow police to conduct sweep

searches of residential neighborhoods when looking for a fleeing

suspect during the nighttime hours of the winter months. Without

more information linking White to the group, I would hold that

Officers Soyers and Riley lacked articulable, reasonable

suspicion required to stop and frisk White. Thus, I would hold

that the trial court erred when it admitted references to the

stocking cap and money taken from White during this unlawful

activity.

- 11 -
 II.

I would also hold that the reference to the pager found on

White's person after he was arrested by Officer Nesselroade

should have been suppressed because it was "fruit of the

poisonous tree." See Walls v. Commonwealth, 2 Va. App. 639,

651-52, 347 S.E.2d 175, 182 (1986). The record indicates that

after Officer Nesselroade overheard the other officers' request

for a warrant check, he radioed the officers to bring White to

him. Officer Nesselroade then arrested White and searched him.

During the search, Officer Nesselroade recovered a pager.

Although White's pager was obtained during a search incident to

arrest, White's arrest was the direct "fruit" of his unlawful

seizure by Officers Soyers and Riley. Thus, the pager should

have been excluded because its discovery resulted from "the

unlawful act," Warlick v. Commonwealth, 215 Va. 263, 265, 208
S.E.2d 746, 748 (1974), and because it was not obtained "by means

sufficiently distinguishable to be purged of the primary taint."
Wong Sun v. United States, 371 U.S. 471, 488, 83 S. Ct. 407,

417, 9 L.Ed.2d. 441 (1963).

III.

Finally, I would hold that the erroneous admission of the

evidence regarding the cash and the pager was not harmless beyond

a reasonable doubt. See Lavinder v. Commonwealth, 12 Va. App.

1003, 1005, 407 S.E.2d 910, 911 (1991) (holding that

constitutional error must be harmless beyond a reasonable doubt).

Without this evidence, the remaining proof of White's intention
- 12 -
to distribute cocaine is less than overwhelming. First, the

amount of crack cocaine possessed by White was relatively small,

only 1.54 grams. See Dukes v. Commonwealth, 227 Va. 119, 122,

313 S.E.2d 382, 384 (1984) (stating that a "relatively small

quantity of [drugs] in the defendant's possession warrants the

inference that it was for [the defendant's] personal use"). In

addition, the record indicates that an electronic scale and

"crack shavings" were found in White's car at the scene.

However, the record does not conclusively prove that White either

owned or used the scale. The Commonwealth did not introduce

evidence of White's fingerprints on the scale, and White said in

his post-arrest statement to Officer Nesselroade that the scale

belonged to someone else. Based on this evidence, a reasonable

fact finder could have concluded that the scale belonged to one

of the other individuals who fled the scene when the officers

appeared.
The remaining evidence of White's intent to distribute

cocaine was his post-arrest statement to Officer Nesselroade that

he knew the techniques of weighing crack cocaine and that he was

familiar with its current market price. However, a reasonable

fact finder could have concluded that White had obtained this

knowledge through his experience as a buyer of crack cocaine

rather than as a seller. See Wilson v. Commonwealth, 16 Va. App.

213, 223-24, 429 S.E.2d 229, 235-36 (1993), aff'd en banc, 17 Va.

App. 248, 436 S.E.2d 193 (1993) (holding that non-constitutional

error was not harmless when evidence regarding intent to
- 13 -
distribute cocaine supported the conclusion that the defendant

was only a user of the drug).

For the foregoing reasons, I respectfully dissent.

- 14 -