COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Judges Coleman and Bray
Argued at Norfolk, Virginia
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 0298-96-1 JUDGE SAM W. COLEMAN III
JUNE 25, 1996
EDDIE D. JOHNSON
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Everett A. Martin, Jr., Judge
Marla Graff Decker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellant.
Steven A. Mirman (Stowe & Stanton, P.C., on
brief), for appellee.
Eddie D. Johnson was indicted for possession of cocaine with
intent to distribute in violation of Code § 18.2-248. Prior to
trial, the trial court granted Johnson's motion to suppress the
cocaine, and the Commonwealth appealed the court's ruling
pursuant to Code § 19.2-398(2). The Commonwealth contends that
Johnson was not seized in violation of the Fourth Amendment
before he discarded and abandoned a "pill bottle" containing the
cocaine that was suppressed. We hold that the initial encounter
between the defendant and the police was consensual and that the
police had probable cause to arrest the defendant when he
attempted to discard the pill bottle containing cocaine.
Accordingly, we reverse the trial court's ruling and remand the
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
case for trial on its merits.
On May 23, 1995, the Norfolk Police Department received a
tip from an anonymous caller that "two black males [were]
standing on the porch of 249 West 28th Street selling [crack
cocaine]." The only description the caller gave of the men,
other than their race, "was a very basic clothing description."
This information was broadcast over the police radio, and
Officers David S. Barber and Harry D. Boone responded to the
reported location. Officer Barber testified that the
neighborhood was known for drug activity and that he had made
previous narcotics arrests at the same address.
When the officers arrived at the address, they observed two
black males, one of whom was the defendant, on the front porch.
The officers stated that the address is a boarding house and that
there is a no-trespassing sign at the front entrance. Officer
Barber testified that he "knew quite a few of the people that
live there," and that he did not recognize either the defendant
or the other man as residents of the house.
The officers approached the men who were on the porch and
asked if they lived at the house. The men responded that they
did not. Although the officers did not ask the men if they were
visiting the house, Officer Barber testified that the men were
not free to leave "because of the no-trespassing sign." However,
the officer did not tell the defendant or his companion that they
were not free to leave.
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The officers explained to the defendant that the police had
received a call reporting that persons were selling drugs at that
location and the officers asked the men if they could pat them
down for weapons. Both men consented. The defendant turned
around "and spread out in a position that [the police] commonly
use to search people." Officer Barber asked the defendant if he
had any narcotics, but the defendant did not respond.
Officer Barber proceeded to pat down the defendant, who was
wearing a t-shirt and shorts. When Officer Barber "came around
to the front of the shorts, [he] could feel inside the shorts in
[the defendant's] groin area what appeared to [him] to be a pill
bottle or a film canister." Officer Barber testified that, based
upon his prior experience, pill bottles were commonly used for
packaging cocaine in the neighborhood where the boarding house
was located.
When Officer Barber touched the defendant's groin area, the
defendant pushed back from the porch railing and bumped into
Barber, knocking him slightly off balance. Then, the defendant
reached into his shorts and removed a prescription pill bottle.
Officer Boone grabbed the defendant's arm, and the defendant
threw the bottle to the ground. The defendant attempted to flee,
but was subdued by the officers after a lengthy struggle. It was
later determined that the pill bottle the defendant discarded
contained cocaine.
The trial court found that the anonymous tip did not provide
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the police with reasonable suspicion to conduct a Terry stop, and
that the police did not have probable cause to arrest the
defendant for trespassing because they did not determine whether
he was visiting someone at the boarding house. In addition, the
court found that the defendant's consent to a pat down search was
limited to a search for weapons, that the defendant withdrew his
consent when Officer Barber searched his groin area, and that the
defendant was seized before he abandoned the pill bottle
containing the cocaine.
When the Commonwealth appeals the trial court's ruling on a
motion to suppress, "[w]e view the evidence in a light most
favorable to [the defendant], the prevailing party below, and we
grant all reasonable inferences fairly deducible from that
evidence." Commonwealth v. Grimstead, 12 Va. App. 1066, 1067,
407 S.E.2d 47, 48 (1991). The trial court's decision will not be
disturbed on appeal "unless it is plainly wrong." Id.
Here, credible evidence supports the trial court's finding
that the police officers did not have reasonable suspicion to
conduct a Terry stop or probable cause to arrest the defendant
for trespassing. Likewise, the evidence, viewed in the light
most favorable to the defendant, supports the court's findings as
to the scope and withdrawal of the defendant's consent to a pat
down search, and the abandonment of the pill bottle.
Nevertheless, the decision granting the motion to suppress was
plainly wrong because the evidence shows that the defendant was
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not seized for Fourth Amendment purposes until after he removed
the pill bottle from his shorts and began to discard it, and at
that point, probable cause existed for the police officer to make
an arrest.
As the defendant concedes, his initial encounter with
Officers Barber and Boone was consensual. The officers
approached the defendant and his companion and asked them whether
they lived in the boarding house. The officers then explained
that they were investigating a report of drug dealing, but the
officers did not specifically identify the defendant or the
companion as suspects. When asked to submit to a search for
weapons, the men consented and stated that "they had nothing to
hide." In fact, the defendant not only consented to the search,
but grabbed the porch railing "and spread out in a position that
[the police] commonly use to search people." See Camden v.
Commonwealth, 17 Va. App. 725, 727, 441 S.E.2d 38, 39 (1994)
(finding that the accused "not only agreed to [the officer's]
request for a weapons pat down, but . . . also began removing
items from his pockets"). Although the police officers testified
that they were investigating the defendant for trespassing and
that he was not free to leave, they did not communicate this to
the defendant. Because the relevant inquiry is whether "in view
of all of the circumstances surrounding the incident, a
reasonable person would have believed that he was not free to
leave," United States v. Mendenhall, 446 U.S. 544, 554, 100
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S. Ct. 1870, 1877, 64 L.Ed.2d 497 (1980), the unexpressed
subjective intent of the officers was irrelevant for the purpose
of determining whether the Fourth Amendment was implicated. Id.
at 554 n.6, 100 S. Ct. at 1877 n.6; see also United States v.
Archer, 840 F.2d 567, 572 (8th Cir.), cert. denied, 488 U.S. 941,
109 S. Ct. 365, 102 L.Ed.2d 354 (1988).
Officer Barber did not have authority or consent to remove
the object that he felt in the defendant's groin area. The scope
of the consensual search was limited to a search for weapons and
Officer Barber acknowledged that the object could not have been a
weapon. See Harris v. Commonwealth, 241 Va. 146, 151-52, 400
S.E.2d 191, 194-95 (1991); Camden, 17 Va. App. at 727, 441 S.E.2d
at 39-40. Nevertheless, Officer Barber did not exceed the scope
of the consensual search by searching the defendant's groin area.
It is "objectively reasonable" for a police officer to believe
that permission to conduct a pat down search for weapons includes
permission to pat down the groin area. See Grinton v.
Commonwealth, 14 Va. App. 846, 851, 419 S.E.2d 860, 862 (1992).
Barber testified that based upon his experience as a police
officer, he knew that people hid a variety of items in their
groin area. Furthermore, the evidence does not indicate that
Officer Barber expanded the scope of the search after he felt the
object in the defendant's groin area.
The defendant reacted immediately to Officer Barber's search
of his groin area by pushing himself away from the railing and
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bumping into Barber, removing the pill bottle from his shorts,
and attempting to throw the bottle to the ground. At that point,
Officer Boone grabbed the defendant's arm and a lengthy struggle
ensued. Therefore, the dispositive question is whether the
officers had probable cause to arrest the defendant when Officer
Boone grabbed his arm.
In determining whether there was probable cause to make an
arrest, "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." DePriest v.
Commonwealth, 4 Va. App. 577, 583-84, 359 S.E.2d 540, 543 (1987)
(quoting Bryson v. Commonwealth, 211 Va. 85, 86-87, 175 S.E.2d
248, 250 (1970)), cert. denied, 488 U.S. 985, 109 S. Ct. 541, 102
L.Ed.2d 571 (1988). Here, Officer Barber did not have probable
cause to arrest the defendant when he felt what appeared to be a
film canister or pill bottle in the defendant's shorts because
film canisters and pill bottles have legitimate uses. Harris,
241 Va. at 154, 400 S.E.2d at 196. Nevertheless, Officer Barber
would have been justified in questioning the defendant about the
object he felt in the shorts because he was aware that the common
practice in that neighborhood was to package cocaine in pill
bottles. Before Officer Barber could investigate further,
however, the defendant grabbed the bottle and attempted to
discard it. See Lawson v. Commonwealth, 217 Va. 354, 357-58, 228
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S.E.2d 685, 687 (1976).
In Lawson, the police officer approached the vehicle in
which Lawson was a passenger to investigate an anonymous report
of drug dealing. Lawson locked the passenger door as the officer
approached, and the officer witnessed Lawson and the driver
exchange an envelope that was later discarded on the floor of the
passenger's side of the vehicle. Id. at 357, 228 S.E.2d at 687.
The Supreme Court held that the officer had "articulable reason"
to investigate the anonymous report and that the furtive gestures
he witnessed gave him probable cause to seize the envelope and
arrest Lawson. Id. at 357-58, 228 S.E.2d 687-88; see also Hollis
v. Commonwealth, 216 Va. 874, 876, 223 S.E.2d 887, 889 (1976).
Likewise, the furtive gestures that Officers Barber and Boone
witnessed prior to seizing the defendant, combined with the
anonymous report of drug dealing, the high incidence of drug
activity in the neighborhood, and Officer Barber's pat down
search of the defendant's groin area, were sufficient to warrant
a reasonable person in believing that an offense was being
committed.
Because the police officers had probable cause to arrest the
defendant at the time he was seized, the trial court erred by
granting the motion to suppress the cocaine found in the pill
bottle. Accordingly, we reverse the trial court's ruling and
remand the case for trial.
Reversed and remanded.
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