COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Annunziata and Senior Judge Coleman
Argued at Richmond, Virginia
LEWIS IDERICK JOHNSON
MEMORANDUM OPINION * BY
v. Record Nos. 1438-02-2, JUDGE SAM W. COLEMAN, III
2019-02-2 and 2050-02-2 APRIL 29, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Robert W. Duling, Judge Designate
Craig W. Stallard, Assistant Public Defender,
for appellant.
Kathleen B. Martin, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
On appeal from a conviction for possession of cocaine with
the intent to distribute, Lewis Iderick Johnson challenges the
denial of his motion to suppress. Johnson contends the police did
not have probable cause to arrest him and that, as a result, his
post-arrest statements were inadmissible. Finding that the trial
court erred in denying Johnson's motion to suppress, we reverse
Johnson's conviction.
I.
In reviewing a trial court's ruling on a motion to
suppress, this Court reviews the "evidence adduced at both the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
trial and suppression hearing," Greene v. Commonwealth, 17
Va. App. 606, 608, 440 S.E.2d 138, 139 (1994), and views the
evidence in the light most favorable to the prevailing party.
See Spivey v. Commonwealth, 23 Va. App. 715, 721, 479 S.E.2d
543, 546 (1997). "'The burden is upon [the defendant] to show
that th[e] ruling, when the evidence is considered most favorably
to the Commonwealth, constituted reversible error.'" McGee v.
Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en
banc) (citation omitted). While we are bound to review de novo
the ultimate questions of reasonable suspicion and probable cause,
Ornelas v. United States, 517 U.S. 690, 699 (1996), "[i]n
performing such analysis we are bound by the trial court's
findings of historical fact unless 'plainly wrong' or without
evidence to support them." McGee, 25 Va. App. at 198, 487 S.E.2d
at 261.
So viewed, the evidence proved that at about 5:30 p.m. on
September 1, 2001, Officers William Breedlove and Richard Lloyd
stopped their marked police vehicle near a group of three or
four men, who were standing beside a building in the 1000 block
of North 20th Street in Richmond. Johnson was among the group.
As the police vehicle stopped, Johnson walked from the side of
the building to the rear of the building and briefly disappeared
from the officers' sight. A few seconds later, Johnson rejoined
the group.
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Breedlove and Lloyd approached the men and had a short
conversation with them. Breedlove followed the path he had seen
Johnson take to the rear of the building, and Breedlove searched
the area. On top of a concrete awning at a door to a residence
in the rear of the building, he found a plastic bag containing
twenty-one individually wrapped pieces of crack cocaine. The
location of the bag was eight to nine feet above the ground.
Breedlove testified that the placement of the drugs "wasn't so
high that you couldn't pitch it right above your head." The
door above which the drugs were found was located two feet from
the corner of the building.
The officers immediately placed appellant under arrest.
After appellant was advised of his rights under Miranda v.
Arizona, 384 U.S. 436 (1966), appellant admitted that the drugs
were his and that he had intended to sell them.
II.
"The test of constitutional validity [of a warrantless
arrest] is whether at the moment of arrest the arresting officer
had knowledge of sufficient facts and circumstances to warrant a
reasonable man in believing that an offense has been committed."
Bryson v. Commonwealth, 211 Va. 85, 86-87, 175 S.E.2d 248, 250
(1970). "To establish probable cause, the Commonwealth must
show 'a probability or substantial chance of criminal activity,
not an actual showing of such activity.'" Ford v. City of
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Newport News, 23 Va. App. 137, 143-44, 474 S.E.2d 848, 851
(1996) (citations omitted).
"The presence or absence of probable cause
is not to be examined from the perspective
of a legal technician. Rather, probable
cause exists when the facts and
circumstances within the officer's
knowledge, and of which he has reasonably
trustworthy information, alone are
sufficient to warrant a person of reasonable
caution to believe that an offense has been
or is being committed. In order to
ascertain whether probable cause exists,
courts will focus upon 'what the totality of
the circumstances meant to police officers
trained in analyzing the observed conduct
for purposes of crime control.'"
Parker v. Commonwealth, 255 Va. 96, 106, 496 S.E.2d 47, 53
(1998) (citations omitted). Therefore, we must determine, based
upon the totality of the circumstances, if Johnson's warrantless
arrest was justified by a reasonable belief that he was engaging
in criminal activity.
Both the Supreme Court of Virginia and this Court have had
opportunities to consider whether the police had probable cause
to arrest a defendant who either threw away or hid an object
when the police arrived. In McCain v. Commonwealth, 261 Va. 483,
487, 434 S.E.2d 541, 543 (2001), police officers found Elbert
McCain in the driver's seat of a parked vehicle and requested his
identification. McCain agreed to the search of the car, refused
to permit the police to search his person, and then walked away
from the officers. McCain walked to an apartment door behind a
set of stairs leading to the second floor. Through openings in a
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wall, an officer saw the shadow of an arm reach out and heard the
sound of a metal object making contact with metal. Retracing
McCain's path to the area behind the stairs, the officer found a
handgun in a metal grocery cart. Id. at 487, 454 S.E.2d at 543.
McCain fled when the officer confronted him with the weapon. The
Court concluded that the police possessed probable cause to arrest
McCain for the possession of a concealed weapon upon the officer's
discovery of the firearm in the grocery cart and McCain's
attempted flight. Id. at 491, 454 S.E.2d at 546.
In Thomas v. Commonwealth, 38 Va. App. 49, 52, 561 S.E.2d
754, 755 (2002), police officers patrolling a high crime area
saw the defendant and two other men standing near a convenience
store that was posted with "no trespassing" signs. As the
officers questioned the men about their presence and outstanding
warrants, id. at 52, 561 S.E.2d at 756, the defendant made a
throwing motion toward the back of a soda machine. The officers
saw no item leave the defendant's hand, looked behind the soda
machine, but found only litter. Several minutes later, after
the police had released the defendant, the officers again
searched the area behind the soda machine and found a plastic
bag containing cocaine against a chain link fence near the
machine. Id. at 53, 561 S.E.2d at 756. We concluded that the
police lacked probable cause to arrest the defendant and noted
that the defendant's hand motion "'was not combined with any
other circumstance which might have justified a rational belief'
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that [he] had thrown the bag . . . ." Id. at 54, 561 S.E.2d at
756 (quoting Matthews v. Commonwealth, 218 Va. 1, 3, 235 S.E.2d
306, 307 (1977)).
The totality of the circumstances in the present case was
less indicative or suggestive of criminal activity than that
considered, and found deficient, in Thomas. In this case,
Johnson disappeared from the police officers' vision for a few
seconds. They did not observe Johnson make a throwing motion or
any gesture suggesting that he was secreting an object. The
discovery, moments later, of the bag of drugs above the area to
which Johnson had walked, but which was accessible to many
others, created a suspicion that he may have placed the bag of
drugs on the awning. This mere suspicion, however, did not
provide the police officers with probable cause to arrest
appellant for the possession of cocaine. "[P]robable cause
. . . must be based on more than speculation, suspicion, or
surmise." Alexander v. Commonwealth, 19 Va. App. 671, 674, 454
S.E.2d 39, 41 (1995). Accordingly, appellant's arrest was
unlawful.
The record contains no evidence that Johnson's statements
did not flow directly from the unlawful arrest or that "the
connection between the arrest and the statement[s] was so
attenuated as to purge the taint of the unlawful arrest."
Thomas, 38 Va. App. at 55, 561 S.E.2d at 757. Therefore,
Johnson's statements were inadmissible.
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For the foregoing reasons, the trial court erred in denying
the motion to suppress appellant's statements. Accordingly,
Johnson's conviction is reversed, and because the conviction
could not stand without Johnson's admissions, the indictment
against him is dismissed.
Reversed and dismissed.
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