COURT OF APPEALS OF VIRGINIA
Present: Judges Benton, Elder and Senior Judge Coleman
Argued at Chesapeake, Virginia
GEORGE ANTHONY WYATT
MEMORANDUM OPINION * BY
v. Record No. 2722-01-1 JUDGE SAM W. COLEMAN III
DECEMBER 31, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Von L. Piersall, Jr., Judge
Charles B. Lustig, Assistant Public Defender,
for appellant.
Eugene Murphy, Assistant Attorney General
(Jerry W. Kilgore, Attorney General, on
brief), for appellee.
On appeal from his conviction for possessing cocaine, George
Wyatt contends the trial court erred in denying his motions to
suppress evidence seized from him following his arrest and to
strike the seized evidence. Finding no error, we affirm Wyatt's
conviction.
I.
In reviewing a trial court's ruling on a motion to
suppress, we view the evidence in the light most favorable to
the prevailing party, and review the "evidence adduced at both
the trial and suppression hearing." Greene v. Commonwealth, 17
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Va. App. 606, 608, 440 S.E.2d 138, 139 (1994). 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,
"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 inferences drawn from those facts by resident
judges and local law enforcement officers." Id. at 198, 487
S.E.2d at 261.
So viewed, the evidence established that on May 19, 2001,
Officer V.K. Fountain encountered Wyatt at a corner building in
the Jeffrey Wilson apartment complex, a property of the Portsmouth
Redevelopment Housing Authority (PRHA). Fountain and Wyatt
conversed briefly about Wyatt's presence on the property. During
the conversation Wyatt talked about his having coached Fountain's
sons in basketball. Fountain testified that he asked the
dispatcher to check the name "George Wyatt" for warrants or
trespassing warnings. When asked specifically on
cross-examination what information he gave to the dispatcher,
Fountain replied, "Mr. Wyatt's pedigree information. He had
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provided that to me, his name, date of birth, [and] social
security number." Although Fountain's investigative narrative
indicated that he "got Wyatt's name and ran it through
dispatch," Fountain testified that this meant he had provided
dispatch with Wyatt's name, date of birth, and social security
number. At trial, Fountain expressed certainty that he had
provided the dispatcher with Wyatt's date of birth and social
security number in addition to his name.
The dispatcher informed Fountain that another police officer
previously had warned Wyatt to stay off the property. Fountain
arrested Wyatt for trespassing and searched him incident to the
arrest. Fountain found crack cocaine in the right front pocket
of Wyatt's shorts.
II.
On appeal, Wyatt contends Fountain did not possess probable
cause to arrest him and that the trial court should have
suppressed the evidence due to the unlawful arrest and ensuing
search.
A police officer may arrest a suspect without a warrant
where the officer has probable cause to believe that a
misdemeanor has been committed in his presence. See Langston v.
Commonwealth, 28 Va. App. 276, 284, 504 S.E.2d 380, 383 (1998).
"[P]robable cause exists when the facts and
circumstances within the officer's
knowledge, and of which he has reasonably
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trustworthy information, alone are
sufficient to warrant a person of reasonable
caution to believe that an offense has been
or is being committed." "The test of
constitutional validity 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." 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 Newport News, 23 Va. App. 137, 143-44, 474
S.E.2d 848, 851 (1996) (citations omitted).
Pursuant to Code § 18.2-119, a person is guilty of a Class
1 misdemeanor when he "goes upon or remains upon the lands,
buildings or premises of another, or any portion or area
thereof, after having been forbidden to do so, either orally or
in writing, by the owner, lessee, custodian or other person
lawfully in charge thereof . . . ." In denying the motion to
suppress, the trial court resolved any conflict regarding
Fountain's testimony in the Commonwealth's favor, and ruled that
Fountain had provided the dispatcher with Wyatt's name, date of
birth, and social security number. We do not disturb this
factual determination, which is supported by credible evidence
in the record. See Mills v. Commonwealth, 14 Va. App. 459, 468,
418 S.E.2d 718, 723 (1992) (where a trial court's factual
finding is supported by credible evidence, it will not be
overturned on appeal). Upon supplying Wyatt's personal
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information to the dispatcher and learning that Wyatt had been
warned previously to stay off PRHA property, Fountain possessed
probable cause to believe that Wyatt was violating Code
§ 18.2-119. Accordingly, Fountain was justified in arresting
Wyatt and in searching him incident to that arrest. See United
States v. Robinson, 414 U.S. 218, 224 (1973).
For the foregoing reasons, the trial court did not err in
denying the motions to suppress and to strike the evidence.
Wyatt's conviction is affirmed.
Affirmed.
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