COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Humphreys
Argued by teleconference
HERMAN LEE JONES, JR.
MEMORANDUM OPINION * BY
v. Record No. 1586-01-2 JUDGE RICHARD S. BRAY
JUNE 18, 2002
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Learned D. Barry, Judge
Gregory W. Franklin, Assistant Public
Defender, for appellant.
Marla Graff Decker, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
Herman Lee Jones, Jr. (defendant) was convicted in a bench
trial for possession of heroin in violation of Code § 18.2-250.
On appeal, he complains the trial court erroneously denied his
motion to suppress the offending drugs. We disagree and affirm
the conviction.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I.
In reviewing a trial court's ruling on a suppression motion,
we consider the evidence in the light most favorable to the
prevailing party below, the Commonwealth in this instance,
granting to it all reasonable inferences fairly deducible
therefrom. 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. 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, 197-98, 487 S.E.2d 259,
261 (1997) (en banc) (quoting Ornelas v. United States, 517 U.S.
690, 691, 699 (1996)). "On appeal, it is the defendant's burden
to show 'that the denial of [the] motion to suppress constitute[d]
reversible error.'" Moss v. Commonwealth, 30 Va. App. 219, 223,
516 S.E.2d 246, 248 (1999) (citation omitted). "Our review of the
record includes evidence adduced at both the trial and the
suppression hearing." Greene v. Commonwealth, 17 Va. App. 606,
608, 440 S.E.2d 138, 139 (1994).
Viewed accordingly, the instant record discloses that, on
January 8, 2001, Richmond Police Officer Thomas L. Gilbert, while
on routine patrol in a "high drug area" at approximately
- 2 -
9:00 a.m., observed defendant walking "down the middle of [a]
street" lined with "sidewalks on both sides." 1 As defendant
"pas[sed] [the] police vehicle," Gilbert noticed "a silver foil
package" "in his left hand," which was "loosely cupped so . . .
[Gilbert] could see the object inside of it." Based on his
"training and experience," including "over a hundred" drug-related
arrests, "probably twenty-five arrests right there in a four block
radius," Gilbert "believed" the "foil package" contained heroin
because "heroin is normally packaged in aluminum foil" "in that
area."
Investigating, Gilbert "asked [defendant] if [he] could speak
to him" and, as defendant "turned around and faced" him, inquired,
"what is in [your] hand?" Defendant responded, "what?" and became
"very evasive," "clinch[ing] his fist" and "tr[ying] to take what
was in his left hand and put it in his right hand." When
defendant "got [his hands] up around his chest," Gilbert "grabbed
[defendant's] arm, and another officer, Wayne Stewart, grabbed the
other arm," explaining that "if it's heroin, and that's all it is,
we'll deal with it. If it's not, everything is going to be all
right." Gilbert then "retrieved the foil package" and arrested
defendant for the instant offense. Subsequent investigation and
analysis of the package contents revealed .068 grams of heroin.
1
Gilbert testified he "could have written [defendant] a
summons for unauthorized use of the highway by a pedestrian,"
but decided instead to approach him and "engage[] in a
conversation."
- 3 -
Prior to trial, defendant moved the court to suppress the
offending drug, complaining of a warrantless, unlawful search and
seizure. The trial court denied the motion and convicted
defendant, resulting in the subject appeal.
II.
Defendant contends Gilbert "grabbed his arm" and searched
the "foil package" with neither reasonable or articulable
suspicion that he was engaged in criminal activity nor probable
cause to arrest. We disagree, finding Gilbert had probable
cause to arrest defendant and undertake a related search of the
package.
"As a general rule of constitutional law, an officer
properly may make a warrantless arrest if he has probable cause
to believe the arrestee has committed a crime, and the officer
may search the individual incident to that lawful arrest."
Lovelace v. Commonwealth, 27 Va. App. 575, 582, 500 S.E.2d 267,
271 (1998) (internal citations omitted). "To establish probable
cause, the Commonwealth must show 'a probability or substantial
chance of criminal activity, not an actual showing' that a crime
was committed." Ford v. City of Newport News, 23 Va. App. 137,
143-44, 474 S.E.2d 848, 851 (1996) (citation omitted).
"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." Powell v. Commonwealth, 27 Va. App. 173,
- 4 -
177, 497 S.E.2d 899, 900 (1998) (citation omitted). "'So long
as probable cause to arrest exists at the time of the search,
. . . it is unimportant that the search preceded the formal
arrest if the arrest followed quickly on the heels of the
challenged search.'" Ross v. Commonwealth, 35 Va. App. 103,
107, 542 S.E.2d 819, 821 (2001) (quoting Carter v. Commonwealth,
9 Va. App. 310, 312, 387 S.E.2d 505, 506-07 (1990)).
Here, when first observed by Gilbert, defendant was
"walking" "down the middle of [a] street" lined with sidewalks
in a "high drug area," notorious for harboring drug dealers.
Defendant was carrying "a silver foil package" in his "loosely
cupped" hand. Based on police "training and experience,"
including "over one hundred" drug arrests and "probably
twenty-five arrests right there in a four block radius," Gilbert
believed the "foil package" contained heroin because, "[i]n that
area," "heroin is normally packaged in aluminum foil."
Approaching defendant, Gilbert noted he became "very evasive,"
"clinch[ing] his fist" and attempting to conceal the "foil
package" by transferring it from "his left hand" to "his right
hand," conduct that suggested the "package" contained
contraband.
The totality of such circumstances, viewed objectively, was
clearly sufficient to provide probable cause to believe
defendant possessed heroin, justifying an immediate warrantless
arrest and related search. Accordingly, the trial court
- 5 -
correctly denied the motion to suppress, and we affirm the
conviction.
Affirmed.
- 6 -
Herman Lee Jones, Jr. v. Commonwealth of Virginia
Combined Opinion