Herbert Lee Evans v. Commonwealth

A Rehearing En Banc was granted in this case on August 14, 1995.

COURT OF APPEALS OF VIRGINIA

Present: Judges Coleman, Elder and Senior Judge Cole
Argued at Richmond, Virginia

HERBERT LEE EVANS
MEMORANDUM OPINION * BY
v. Record No. 0577-94-2 JUDGE LARRY G. ELDER
JUNE 27, 1995
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Thomas N. Nance, Judge

David R. Lett for appellant.

Robert B. Condon, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.

Herbert Lee Evans (appellant) appeals his conviction for

possession of cocaine. Appellant's sole contention is that the

cocaine seized by the police should have been suppressed because

the officer seized it in violation of appellant's fourth

amendment rights. Upon review, we hold that the trial court

erred in ruling that the search and seizure were lawful and in

admitting the illegally seized cocaine into evidence. Because

the cocaine evidence was indispensable to prove the

Commonwealth's case, we reverse the conviction and dismiss the

indictment.

On the night of October 20, 1993, while patrolling a high

*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
drug area of Richmond, Officer Michael Talbert observed appellant

standing in the middle of the street with another individual.

Appellant and the person made a hand-to-hand exchange, but

Talbert could not see what had been exchanged. Appellant

appeared to notice the police car coming towards him, and he

immediately approached a vehicle that was parked with its engine

running. Appellant, who had a small black leather pouch in his

left hand and a pager in his right hand, placed his left hand

inside the open window of the vehicle. When appellant removed

his hand, he was no longer holding the pouch. Appellant

transferred the pager from his right hand to his left hand.
Talbert testified that, based upon his experience and

training in narcotics detection and his observation of all of the

circumstances, he believed appellant had engaged in a drug

transaction. Talbert approached the vehicle, shined his

flashlight inside, saw a pouch, reached inside, and retrieved the

pouch from the floorboard behind the driver's seat. Talbert

could not see inside the pouch without picking it up. When he

shined his flashlight into the pouch, Talbert saw that it

contained bags of a substance that he suspected was cocaine.

Talbert arrested appellant for possession of cocaine. When the

police searched the vehicle incident to appellant's arrest, they

found in the trunk crack cocaine hidden inside a candy container

in a leather jacket.

At a bench trial, appellant was convicted of possession of

-2-
cocaine.

In determining whether Talbert had probable cause to seize

the pouch without a warrant, we are guided by certain principles.

The test of the constitutional validity of a warrantless search

"'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.'"

Hardy v. Commonwealth, 11 Va. App. 433, 434, 399 S.E.2d 27, 28

(1990) (quoting DePriest v. Commonwealth, 4 Va. App. 577, 583-84,
359 S.E.2d 540, 543 (1987), cert. denied, 488 U.S. 985 (1988)).

Furthermore, although we are required to "test what the totality

of the circumstances meant to police officers trained in

analyzing the observed conduct for purposes of crime control," we

must consider that "the probable-cause determination must be

based on objective facts that could justify the issuance of a

warrant by a magistrate." Buck v. Commonwealth, 20 Va. App. 298,

__, 456 S.E.2d 534, __ (1995) (quoting Derr v. Commonwealth, 6

Va. App. 215, 219-20, 368 S.E.2d 916, 918 (1988)) (other

citations omitted). See also DePriest, 4 Va. App. at 584, 359

S.E.2d at 543 ("[I]n assessing an officer's probable cause for

making a warrantless arrest [or seizure and search], no less

strict standards may be applied than are applicable to a

magistrate's determination that [a] . . . warrant should issue.")

(citing Washington v. Commonwealth, 219 Va. 857, 862, 252 S.E.2d

326, 329 (1979)).

-3-
 The Commonwealth claims that Talbert had probable cause to

seize the pouch and search its contents because (1) he observed

hand-to-hand contact between appellant and a third party; (2) the

exchange occurred in a high drug area; (3) appellant and the

third party quickly parted after seeing the police; (4) appellant

placed the pouch in a vehicle and distanced himself from the

vehicle; (5) appellant possessed a pager; and (6) Talbert's

experience and training in narcotics detection allowed him to

conclude he witnessed a drug transaction.
A complete review of the record shows that "[a]t most, the

facts raised a suspicion that criminal activity was afoot; the

facts did not provide [Talbert] with probable cause to believe

that the appellant had or was committing a crime." Buck, 20 Va.

App. at __, 456 S.E.2d at __ (quoting DePriest, 4 Va. App. at

584-85, 359 S.E.2d at 544). The behavior Talbert observed could

have been equally indicative of lawful activity, especially in

light of the fact that he did not see what was being exchanged by

the parties.

This Court held in DePriest that the arresting officer's
observations did not establish probable cause to arrest the

appellant for selling narcotics. In DePriest, the officer

observed the appellant over a three and a half hour period

engaging in hand-to-hand contact with multiple people and

exchanging money and other objects with multiple people. We held

that "while the events observed by [the officer] were suspicious

-4-
they did not alone, establish probable cause," but a mere

reasonable suspicion of criminal activity. DePriest, 4 Va. App.

at 584-85, 359 S.E.2d at 543-44. We also reiterated that "'a

sequence of events which is typical of a common form of narcotics

transaction may create a suspicion in a police officer's mind,

but probable cause, of course, requires more than mere

suspicion.'" DePriest, 4 Va. App at 585, 359 S.E.2d at 543-44

(quoting United States v. Green, 670 F.2d 1148, 1151 (D.C. Cir.

1981)) (emphasis added).
Other decisions from this Court are instructive in reaching

our conclusion. In Smith v. Commonwealth, 12 Va. App. 1100, 407

S.E.2d 49 (1991), the arresting officer saw the appellant at

night in a playground in a drug area and saw him quickly move to

put his hand into his pants when the officer's marked car came

into view. However, the officer observed no other behavior that

would have indicated that the appellant was involved in criminal

activity. This Court held that these facts did not provide

sufficient cause to even detain the appellant for an

investigatory stop, which requires a mere reasonable, articulable

suspicion of criminal activity (a more lenient standard than

probable cause).

In Commonwealth v. Grimstead, 12 Va. App. 1066, 407 S.E.2d
47 (1991), the arresting officer stopped the appellant's car in

the early morning hours for speeding and saw a hemostat in the

vehicle's ashtray. The officer removed the hemostat to examine

-5-
it, observed what he thought were traces of marijuana, and

arrested the appellant. We held that on this evidence, "the

officer did not have probable cause to seize the hemostat as

evidence of a crime . . ." as the hemostat's presence could only

have justified a suspicion of criminality. 12 Va. App. at 1070,

407 S.E.2d at 49.

As the dissent recognizes, this case offers some indicia

that appellant possessed cocaine. However, "[a]t most, the facts

raised a suspicion that criminal activity was afoot; the facts

did not provide [Talbert] with probable cause to believe that the

appellant had or was committing a crime." Buck, 20 Va. App. at

__, 456 S.E.2d at __. Consequently Talbert lacked probable cause

to seize and search the pouch or arrest appellant. This case is

unlike Commonwealth v. Ramey, 19 Va. App. 300, 450 S.E.2d 775

(1994), where the arresting officer viewed a plastic bottle

resembling a "bong" partially protruding from the pack the

appellant wore at his waist. While issuing a traffic summons to

the driver of the vehicle in which the appellant was a passenger,

the officer seized the device and arrested the appellant for

possession of cocaine. We held that "[b]ecause of the

distinctive character of the plastic bottle with foil on top and

the highly unlikely event that it would have a legitimate use,

the officer had probable cause to believe that the 'homemade

bong'" might be useful as evidence of a crime. Id. at 305, 450

S.E.2d at 777.

-6-
 Accordingly, the seizure of the pouch and its subsequent

search were illegal. We therefore reverse the conviction and

dismiss the indictment.

Reversed and dismissed.

-7-
Cole, S. J., dissenting.

I respectfully disagree with the majority's decision to

suppress the evidence of cocaine. I agree with the trial court

that the police officers had probable cause to seize it.

In reviewing a trial court's denial of a motion to suppress,

"the burden is upon [the appellant] to show that this ruling,

when the evidence is considered most favorably to the

Commonwealth, constituted reversible error." Fore v.
Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert.

denied, 449 U.S. 1017 (1980).

The only issue in this case is whether the police officers

had probable cause to seize from the appellant's car a black

leather pouch containing cocaine. Admittedly, it is difficult to

define probable cause. Professor Bacigal has described probable

cause in this manner:
The law is clear as to what is not
probable cause. It is not proof beyond a
reasonable doubt; it is not a prima facie
showing; it is not bare suspicion. The law
is less clear as to what is probable cause.
As the name implies, probable cause deals
with probabilities, but the courts have not
held that it means more probable than not.
. . .

The courts recognize that probable cause

involves the factual and practical

considerations of everyday life. Probable

cause is established when the totality of the

circumstances warrant a person of reasonable

caution in the belief that seizable items are

-8-
 located in the area to be searched. The

required degree of probability is therefore

expressed as a "reasonable belief" and not in

terms of any mathematical precision. The

distinction between "reasonable belief" and

"bare suspicion" remains elusive and can only

be determined by focusing on the precise

facts of individual cases.
Ronald J. Bacigal, Virginia Criminal Procedure § 4-7 (3d ed.

1994). See also Brinegar v. United States, 338 U.S. 160 (1949);

Saunders v. Commonwealth, 218 Va. 294, 237 S.E.2d 150 (1977).

The United States Supreme Court has frequently

remarked that probable cause is a flexible,

common-sense standard. It merely requires

that the facts available to the officer would

"warrant a man of reasonable caution in the

belief" that certain items may be contraband

or stolen property or useful as evidence of a

crime; it does not demand any showing that

such a belief be correct or more likely true

than false. A "practical, nontechnical"

probability that incriminating evidence is

involved is all that is required.

Texas v. Brown, 460 U.S. 730, 742 (1983) (citations omitted).
Accord Delong v. Commonwealth, 234 Va. 357, 366, 362 S.E.2d 669,

-9-
673 (1987), cert. denied, 485 U.S. 929 (1988) (using identical

language to define probable cause).

I shall focus upon the facts and circumstances of this

particular case to determine whether the police officer at the

time he made the decision to seize the pouch had probable cause

to believe that contraband was located in the area to be

searched. The only witness to the facts was Michael R. Talbert

of the Richmond Police Department. He is a veteran police

officer with eight years of experience, six and half of which

were spent investigating narcotics crimes. He had received

classes in narcotics and surveillance techniques. He had

performed well over two hundred surveillances and was the primary

arresting officer of over five hundred persons on narcotics

offenses. He had been involved with investigating both selling

and buying drugs on the streets.
On the night in question Talbert and two other officers were

on patrol in a "high drug area." Talbert himself had made a

number of arrests in the area on previous occasions. As he

turned onto Walcott Place, he observed the appellant and another

individual standing in the middle of the street having hand-to-

hand contact. He testified that what he observed was more than a

handshake and that something had been exchanged, but he did not

know what it was. Talbert stated that if this was all he

observed, he would not have stopped his vehicle.

In addition, he observed that when the police car turned the

-10-
corner, the defendant and the other individual turned and looked

in their direction. Immediately, the two men split up. The

other individual went to Talbert's left and appellant went in the

opposite direction towards a vehicle that was parked on the

street.

Talbert observed that appellant had a pager in his right

hand and a black leather pouch in his left hand. Talbert

explained that a pager is typically used in drug transactions.
Appellant walked towards the parked car. Talbert noticed

that the car's motor was running and the driver's window was

down. As appellant walked beside the car on the street side, the

following events occurred according to Talbert's testimony:
[Appellant] slipped his left hand into the
car. When he pulled it back out, he was no
longer holding the black pouch that he
originally had been holding. At that time,
he put his hands down in front of him, and
then he kind of discretely changed the pager
from right hand to his left hand. About this
time, he was at the back of the car . . . .

At this point the officer stopped his vehicle and walked to

the place where the pouch had disappeared. He shined his

flashlight into the car and observed the black pouch laying on

the floor in the back seat behind the driver's seat. Talbert

testified that all of these facts and circumstances together led

him to the conclusion that he had observed a drug transaction.

He stated that "the actions of [appellant] were typical of what I

have seen, not only from being in a police vehicle and pulling up

on people, but from surveillances, observing throwdowns."

-11-
 Talbert reached into the car, seized the pouch, and observed

that it contained rock-like substances in clear plastic baggies.

Further observation revealed that the pouch contained seven

baggies with a rock of cocaine valued at fifty dollars in each

bag. Appellant was placed under arrest for possession of cocaine

with intent to distribute. Additional cocaine was found in the

trunk of the vehicle in a coat belonging to appellant.

The trial court denied the motion to suppress the drug

evidence for the following reason:
Well, the officer articulated very well
. . . . But his indication was the hand-to-
hand contact; the high drug area; the
splitting of the two men, going in opposite
directions; your client, obviously, getting
rid of what he had in his hand; the pager. I
think he had the right to go to the vehicle
and get the pouch.
Once he looks in the pouch, if he can
legally look in that pouch, then, of course,
he can legally go in the trunk.

Although none of these factors is sufficient by itself to

constitute probable cause, it is their combination under the

particular circumstances confronting Talbert that is the proper

subject of our consideration. Probable cause exists if the

totality of the circumstances, as viewed by a reasonable and

prudent police officer in light of his training and experience,

would lead a man of reasonable caution to believe that the item

to be seized may be contraband or useful as evidence of a crime.

Such belief need not be correct or more likely true than false.

The majority states that the behavior observed by Talbert

-12-
could have been equally indicative of lawful activity, especially

in light of the fact that he did not see what was being exchanged

by the parties. Given this set of circumstances and the order in

which they occurred, Talbert concluded that Evans had engaged in

or was engaged in criminal activity. I cannot perceive any

innocent explanation for the sequence of the appellant's

behavior, and he did not suggest any in the trial court or in

this Court.
In taking this position, the majority has abandoned the

standard of "reasonable belief" and requires the Commonwealth to

prove a "prima facie" case. If the Commonwealth is required to

directly prove the presence of cocaine, we are no longer dealing

with probabilities but with a higher standard than the law

requires. The Supreme Court has put this issue to rest. In

Illinois v. Gates, 462 U.S. 213 (1983), the Court said:
[P]robable cause requires only a probability
or substantial chance of criminal activity,
not an actual showing of such activity. By
hypothesis, therefore, innocent behavior
frequently will provide the basis for a
showing of probable cause; to require
otherwise would be to sub silentio impose a
drastically more rigorous definition of
probable cause than the security of our
citizens demands. We think the Illinois
court attempted a too rigid classification of
the types of conduct that may be relied upon
in seeking to demonstrate probable cause.
. . . In making a determination of probable
cause the relevant inquiry is not whether
particular conduct is "innocent" or "guilty",
but the degree of suspicion that attaches to
particular types of noncriminal acts.

462 U.S. at 243-44, n.13. See also United States v. Sokolow, 490

-13-
U.S. 1, 8 (1989).

This Court's decision in DePriest v. Commonwealth, 4 Va.

App. 577, 359 S.E.2d 540 (1987), cert. denied, 488 U.S. 985

(1988), cited in the majority opinion in support of their

position, in fact supports my point of view in this case. The

only evidence presented by the Commonwealth in DePriest was that

an experienced police officer was conducting a surveillance. He

observed several persons approach DePriest and a companion and

give them money. One of them would leave and, in about five

minutes, return and give something to the person. The officer

could not identify the item exchanged for money. According to

the officer, he arrested DePriest "'based upon my observation of

Mr. Toney and Mr. DePriest for the three and a half hour period,

and then based upon the contraband found on Mr. Toney and based

upon the currency that I had observed Mr. Toney give Mr. DePriest

after what I suspected to be drug transactions, and based on my

experience.'" Id. at 581-82, 359 S.E.2d at 542.

In rejecting the Commonwealth's argument in DePriest, this
Court stated that the events witnessed by the officer provided

him with a mere suspicion of criminal activity but not probable

cause. The Court explained the rationale behind its decision as

follows:
It is relevant in this regard that [the
officer] did not observe suspected narcotics
change hands, nor did he observe the exchange
of any object which in his experience
suggested narcotics. Further, there was no
evidence that the area under surveillance was
noted for [drug] transactions, or that the

-14-
 transactions observed were furtive in nature.
In summary, while the events observed by
Detective Carter were suspicious they did
not, alone, establish probable cause.

4 Va. App. at 585, 359 S.E.2d at 544.

All of these factors, noted as missing in DePriest, are

present in this case, but have not been mentioned in the majority

opinion.

The majority cites Smith v. Commonwealth, 12 Va. App. 1100,

407 S.E.2d 49 (1991), and Commonwealth v. Grimstead, 12 Va. App.

1066, 407 S.E.2d 47 (1991), as authority for its position. I

disagree because the totality of the circumstances in each of

these cases is clearly distinguishable.
In Smith, we pointed out some of the factors to be

considered in examining the circumstances necessary to show

criminal activity. We said we may consider "'the

"characteristics of the area" where the stop occurs, the time of

the stop, whether late at night or not, as well as any suspicious

conduct of the person accosted such as an obvious attempt to

avoid officers or any nervous conduct on the discovery of their

presence.'" Id. at 1103, 407 S.E.2d at 51-52 (citations

omitted). As stated by the majority, the only evidence present

in the Smith case was that
the arresting officer saw the [accused] at
night in a playground in a drug area and saw
him quickly move to put his hand into his
pants when the officer's marked car came into
view. However, the officer observed no other
behavior that would have indicated that the
appellant was involved in criminal activity.

-15-
The facts here are clearly distinguishable from that case.

In Grimstead, the police officer stopped the defendant for

speeding. He observed in open view a hemostat in the ashtray.

He removed Grimstead from the car. He testified that in his mind

"he needed to make an observation as to whether or not they had

been used as any illegal use, anything other than their intended

use; and to do so, I needed to examine them." Id. at 1068, 407

S.E.2d at 48. This testimony showed that the officer did not

believe he had probable cause to seize the item. The officer

seized the hemostat and observed marijuana residue on the tips of

the hemostat. Based upon those facts, this Court held that the

officer did not have probable cause to seize the hemostat as

evidence of a crime. Again, this case is clearly distinguishable

upon the facts.
A case factually more analogous to this case is United

States v. Green, 670 F.2d 1148 (D.C. Cir. 1981). In Green, an

experienced police officer in an area known for drug activity

observed two (other) persons engaged in a transaction of a type

common to drug peddling. The officer noticed that the parties

attempted to conceal the exchanged object. The defendant, when

he noticed the police approaching, turned and rapidly walked away

and made a motion as if to dispose of the object he was carrying.

The trial court found that the totality of circumstances

presented was sufficient to establish probable cause. It relied

upon these factors: (1) the sequence of events between the

-16-
parties which was typical of a two-party narcotic transaction;

(2) the movement of the three persons' cupped hands and Green's

subsequent stuffing of the protruding paper bag back into his

coat pocket, suggesting an attempt to conceal the object; and (3)

the appearance of flight and evasion when pursued by the officer.

Based upon the combination of these factors, the circuit court

held the evidence sufficient to constitute probable cause.

Based upon the foregoing facts and case law analyses, I find

that the evidence is sufficient to establish probable cause for

Officer Talbert to seize the black leather pouch. Accordingly, I

cannot find that the trial court was plainly wrong or that its

decision was without credible evidence to support it in refusing

to suppress the drug evidence. I would affirm the decision of

the trial court.

-17-