COURT OF APPEALS OF VIRGINIA
Present: Judges Bumgardner, Felton and Senior Judge Overton
Argued at Chesapeake, Virginia
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 2501-02-4 JUDGE RUDOLPH BUMGARDNER, III
MARCH 28, 2003
WILLIAM D. PRIESTER
FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
Richard J. Jamborsky, Judge Designate
Richard B. Smith, Senior Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on briefs), for appellant.
Donald M. Haddock, Jr. (Redmon, Peyton &
Braswell, LLP, on brief), for appellee.
William D. Priester was charged with possession of cocaine
with intent to distribute and possession of ecstasy with intent
to distribute. The trial court granted his pre-trial motion to
suppress the drugs and his statements to police. Concluding the
police had reasonable articulable suspicion to conduct an
investigative detention, we reverse the trial court's ruling.
The Commonwealth must show that granting the motion to
suppress constituted reversible error when the evidence is
considered in the light most favorable to the defendant. McGee
v. Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
(1997) (en banc); Commonwealth v. Grimstead, 12 Va. App. 1066,
1067, 407 S.E.2d 47, 48 (1991). "Ultimate questions of
reasonable suspicion and probable cause to make a warrantless
search" involve questions of both law and fact and are reviewed
de novo on appeal. Ornelas v. United States, 517 U.S. 690, 699
(1996). "[W]e 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, 25 Va. App. at 198, 487 S.E.2d at 261.
Officers Trimber and Ritchie were working as street crimes
police officers. Citizens had complained about drug activity in
the area, and Officer Trimber had made drug arrests there. The
officers were dressed in trousers and black T-shirts with a
badge embroidered over the left breast pocket. The words
"Police" and "Street Crimes Unit" encircled the badge, and the
phrase "Alexandria Police Department" appeared on the back of
the shirt. The officers wore duty belts, which held their
firearms and badges.
At approximately 7:15 p.m., June 4, 2002, Officer Trimber
observed the defendant lean for one or two seconds into the
driver's window of a vehicle stopped at the dead end of a
street. The officer did not see anything pass from hand to
hand, but when the defendant looked at the officer, he walked
into an alley leading from the street. As he did, the officer
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noticed the defendant's hand was closed in a fist. He brought
his fist to his mouth, extended his fingers, and appeared to
empty whatever was in his hand into his mouth. The defendant
then dropped his hand, which was then opened, to his side.
Officer Trimber knew from experience that drug dealers conceal
drugs in their mouths and swallow them if confronted by the
police.
The officers drove into the alley, stopped close to the
defendant, and exited their vehicle. The defendant stopped and
turned. The officers did not draw weapons, but they were within
one foot and two feet of the defendant when Officer Trimber
asked, "Did you just swallow dope?" The defendant said no and
opened his mouth. The officer saw nothing in the defendant's
mouth. Officer Trimber then asked for identification. The
defendant reached into his back pockets with both hands and
pulled out plastic bags containing white substances from one of
them. He immediately jammed the bags back into his pocket and
fled. The officers pursued and apprehended the defendant
because they believed the bags contained cocaine. They did not
see the defendant drop anything as they chased him, but they
retrieved plastic bags along the path he took.
In deciding whether a seizure occurred, we determine
"whether, under a totality of circumstances, a reasonable person
would have believed that he . . . was not free to leave."
McGee, 25 Va. App. at 199-200, 487 S.E.2d at 262. See also
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United States v. Mendenhall, 446 U.S. 544, 554 (1980). Under
the facts of this case, we conclude a seizure occurred. The
officers followed the defendant into an alley, exited their
vehicle, and stood within two feet of the defendant when Officer
Trimber asked, "Did you just swallow dope?" The statement was
an accusation that conveyed an explicit message that the police
were investigating a crime being committed in their presence and
compliance with their directives was required. McGee, 25
Va. App. at 200, 487 S.E.2d at 262.
However, at the time the officers stopped the defendant
they had reasonable suspicion to conduct an investigative
detention. Terry v. Ohio, 392 U.S. 1, 27 (1968). To conduct
such a stop an officer must have "a particularized and objective
basis for suspecting" the defendant is engaged in criminal
activity. United States v. Cortez, 449 U.S. 411, 417-18 (1981);
Bass v. Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 923
(2000) ("a minimal level of objective justification" is
required).
The officers observed the defendant in a high crime area
leaning in the driver's window of a car stopped at the end of a
dead-end street. When the defendant saw the police, he walked
off and into an alley. As he walked away, he raised his fist to
his mouth, and appeared to put something in his mouth. The
officers knew from experience those actions were consistent with
sale and concealment of drugs. Experience also indicated
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dealers conceal drugs in their mouths and swallow the drugs if
confronted by the police. "The officer is also entitled 'to
view the circumstances confronting him in light of his training
and experience, and he may consider any suspicious conduct of
the suspected person.'" Andrews v. Commonwealth, 37 Va. App.
479, 491, 559 S.E.2d 401, 407 (2002) (quoting James v.
Commonwealth, 22 Va. App. 740, 745, 473 S.E.2d 90, 92 (1996)).
See Whitfield v. Commonwealth, ___ Va. ___, ___, ___ S.E.2d ___,
___ (Feb. 28, 2003).
When the defendant opened his mouth, the officer observed
no drugs in it. Not having their original reasonable suspicion
of criminal conduct allayed, the officers continued their
investigative detention by requesting identification. "[T]he
officer may ask the detainee a moderate number of questions to
determine his identity and to try to obtain information
confirming or dispelling the officer's suspicions." Berkemer v.
McCarty, 468 U.S. 420, 439 (1984).
When the defendant reached in his pockets to retrieve
identification, he pulled out plastic bags that the officers
recognized as probable cocaine. The officers' reasonable
suspicion had ripened into probable cause. The defendant's
flight provided further evidence of wrongdoing. Illinois v.
Wardlow, 528 U.S. 119, 124-25 (2000). The officers pursued and
arrested the defendant armed with probable cause to arrest and
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search incident to the arrest. All the evidence they obtained
from the defendant was lawfully obtained.
We conclude the officers had reasonable suspicion for the
initial stop. Their investigation developed probable cause
before they obtained any of the evidence the defendant sought to
suppress. Accordingly, we reverse the decision to suppress and
remand.
Reversed and remanded.
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