Cost v. Com.

Present: All the Justices

DARRIO L. COST
OPINION BY
v. Record No. 070496 JUSTICE LAWRENCE L. KOONTZ, JR.
February 29, 2008
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether the Court of Appeals

erred in affirming a circuit court’s judgment denying a motion

to suppress evidence seized by a police officer from inside the

defendant’s pants pocket during a “pat-down” search. The sole

issue presented is whether the officer had sufficient probable

cause to seize a number of capsules based upon his assertion

that by the “plain feel” of the capsules he knew, through his

training and experience, that they contained an illegal drug

packaged in capsule form.

BACKGROUND

The pertinent facts in this case are not in dispute.

Around 12:40 a.m. on December 14, 2004, Portsmouth Police

Officer B. C. Davis, who was assigned as a full-time agent of

the Portsmouth Redevelopment and Housing Authority with

responsibility for patrolling residential developments of the

Authority, approached Darrio L. Cost, who was sitting in the

passenger seat of a vehicle parked in a parking lot designated

for residents of the Jeffry Wilson housing complex. This
property was owned by the Authority. As Davis approached the

vehicle’s passenger side window, he observed as Cost

“immediately reach[ed] across his body towards his left front

pants pocket.” Davis asked Cost what he was reaching for, but

Cost did not answer. Davis told Cost “to get away from” his

pocket, but Cost reached toward the pocket again. Davis then

directed Cost to exit the vehicle.

Upon exiting the vehicle, Cost immediately told Officer

Davis, “[y]ou can’t search me, but you can pat me down.” Davis

conducted a “pat down” search of Cost for concealed weapons. In

doing so, Davis immediately frisked the left front pants pocket

toward which Cost had been reaching. When Davis touched the

pocket, he felt numerous capsules inside. Davis reached into

Cost’s pocket and removed a plastic bag containing twenty

capsules. Subsequent analysis of the contents of those capsules

showed that they contained heroin.

Cost was indicted by a grand jury in the Circuit Court of

the City of Portsmouth on the charge of possession of heroin

with the intent to distribute in violation of Code § 18.2-248.

Prior to trial, Cost moved to suppress the heroin capsules

seized from his person during the pat-down search, claiming they

were discovered in violation of his rights under the Fourth

Amendment. At the suppression hearing, Officer Davis testified

that he had been a police officer for approximately four and a

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half years. Davis testified that he did not feel what he

thought to be a weapon in Cost’s pocket and that he did not

think that there was a weapon in that pocket after he felt the

capsules there. Davis contended that upon feeling the capsules

in Cost’s pocket he “knew” that they were heroin because

“[t]hrough my training and experience, I know that that’s what

heroin is packaged in.” On cross-examination, Davis admitted

that over-the-counter medications such as “Motrin, Tylenol, or

something along those lines” are sometimes “packaged in

capsules.”

The circuit court denied Cost’s motion to suppress the

evidence seized from his person. Cost was tried without a jury

and found guilty of the offense charged in the indictment. The

circuit court sentenced Cost to ten years imprisonment, with a

portion of the sentence suspended. Cost appealed his conviction

to the Court of Appeals challenging the circuit court’s failure

to suppress the evidence. The Court of Appeals affirmed the

conviction in a published opinion, Cost v. Commonwealth, 49 Va.

App. 215, 638 S.E.2d 714 (2006). We granted Cost this appeal.

DISCUSSION

A defendant’s claim that evidence was seized in violation

of the Fourth Amendment presents a mixed question of law and

fact that we review de novo on appeal. Murphy v. Commonwealth,

264 Va. 568, 573, 570 S.E.2d 836, 838 (2002); Bolden v.

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Commonwealth, 263 Va. 465, 470, 561 S.E.2d 701, 704 (2002);

McCain v. Commonwealth, 261 Va. 483, 489, 545 S.E.2d 541, 545

(2001); see also Ornelas v. United States, 517 U.S. 690, 691,

699 (1996). In making such a determination, we give deference

to the factual findings of the circuit court, but we

independently determine whether the manner in which the evidence

was obtained meets the requirements of the Fourth Amendment.

Bolden, 263 Va. at 470, 561 S.E.2d at 704; McCain, 261 Va. at

490, 545 S.E.2d at 545; Bass v. Commonwealth, 259 Va. 470, 475,

525 S.E.2d 921, 924 (2000). The defendant has the burden to

show that, considering the evidence in the light most favorable

to the Commonwealth, the circuit court’s denial of his

suppression motion was reversible error. Bolden, 263 Va. at

470, 561 S.E.2d at 704; McCain, 261 Va. at 490, 545 S.E.2d at

545; Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729,

731 (1980).

Cost does not dispute that during an investigative stop, a

law enforcement officer may conduct a limited search for

concealed weapons if the officer reasonably believes that a

criminal suspect may be armed and dangerous. Terry v. Ohio, 392

U.S. 1, 27 (1968); see also Florida v. J.L., 529 U.S. 266, 269-

70 (2000); Adams v. Williams, 407 U.S. 143, 146 (1972); Harris

v. Commonwealth, 241 Va. 146, 150, 400 S.E.2d 191, 193-94

(1991); Jones v. Commonwealth, 230 Va. 14, 19, 334 S.E.2d 536,

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539-40 (1985). Indeed, Cost expressly consented to such a

limited search of his person by Officer Davis. Rather, Cost

argues that his Fourth Amendment right to be free from

unreasonable searches and seizures was violated because Officer

Davis exceeded the proper scope of a Terry pat-down search.

Cost contends that this is so because the character of the

capsules as containing heroin, or some other form of contraband,

would not be immediately apparent merely by feeling the capsules

through his clothing, and Davis could discern that what he did

feel in Cost’s pocket was not a weapon. Thus, Cost asserts that

the heroin capsules removed from his pocket should have been

excluded from evidence.

The Commonwealth responds that the Court of Appeals

correctly held that determining whether a law enforcement

officer conducting a Terry pat-down search had sufficient

probable cause to seize an item suspected to be contraband based

upon the feel of the object through the suspect’s clothing

requires a consideration of the totality of the circumstances.

Cost, 49 Va. App. at 227, 638 S.E.2d at 719-20. Thus, the

Commonwealth contends that the circuit court correctly ruled,

and the Court of Appeals properly agreed, that Officer Davis was

justified in seizing the capsules from Cost’s pocket because

“[a]lthough other [legal] substances are contained in capsules,

his own experience and common sense told Davis that one does not

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carry numerous loose capsules of legal substances in one’s

pocket.”

We agree with the Commonwealth that the determination

whether a law enforcement officer had sufficient probable cause

to seize contraband from a person in the course of a Terry pat-

down search requires a consideration of the totality of the

circumstances surrounding the search, as well as a consideration

of the officer’s knowledge, training and experience. As we have

recently observed, “[a]n officer who conducts a Terry pat-down

search is justified in removing an item from a subject’s pocket

if the officer reasonably believes that the object might be a

weapon. Lansdown v. Commonwealth, 226 Va. 204, 213, 308 S.E.2d

106, 112 (1983). Additionally, the removal of an item from a

subject’s pocket is also justified if the officer can identify

the object as suspicious under the ‘plain feel’ variation of the

plain view doctrine. Minnesota v. Dickerson, 508 U.S. 366, 375-

76 (1993); see Murphy v. Commonwealth, 264 Va. 568, 574, 570

S.E.2d 836, 839 (2002).” Grandison v. Commonwealth, 274 Va.

316, 319-20, 645 S.E.2d 298, 300 (2007).

The “plain feel” doctrine comports with the traditional

application of the Fourth Amendment because, when the character

of the object felt by the officer is immediately apparent either

as a weapon or some form of contraband, the object is for all

practical purposes within the plain view of the officer. The

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Fourth Amendment does not require the officer to be subjected

unreasonably to the risk of harm from a dangerous weapon or to

ignore criminal activity occurring in his presence. In

Dickerson, the United States Supreme Court explained that when

the identity of the object is immediately apparent to the

officer conducting a legal pat-down search of a suspect “there

has been no invasion of the suspect’s privacy beyond that

already authorized by the officer’s search for weapons; if the

object is contraband, its warrantless seizure would be justified

by the same practical considerations that inhere in the plain-

view context.” 508 U.S. at 375-76.

“However, an item may not be retrieved under the plain view

doctrine unless it is ‘immediately apparent’ to the officer that

the item is evidence of a crime. Coolidge v. New Hampshire, 403

U.S. 443, 466 (1971); Murphy, 264 Va. at 574, 570 S.E.2d at

839.” Grandison, 274 Va. at 320, 645 S.E.2d at 300. It is not

sufficient probable cause to seize an item from inside the

suspect’s clothing if the officer has no more than an educated

“hunch” based upon the “plain feel” that the item might be

contraband. See Harris v. Commonwealth, 241 Va. 146, 151, 400

S.E.2d 191, 194 (1991) (addressing officer’s “hunch” that a

closed canister contained illegal drugs).

Consistent with these principles, we have stated that “when

the character of the item is not immediately apparent from the

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‘pat[-]down’ search, and the officer does not reasonably suspect

that the item is a weapon, further search regarding the item is

not allowed [by the Fourth Amendment] because such an

evidentiary search is unrelated to the justification for the

frisk” of the suspect. Murphy, 264 Va. at 574, 570 S.E.2d at

839. In Murphy, we held that marijuana contained in a plastic

bag in the suspect’s pants pocket was illegally seized during a

pat-down search because the character of the bag’s contents as

contraband was not immediately apparent from the officer’s

tactile perception and, thus, the officer did not have probable

cause to seize the bag and its content without a warrant. Id.

at 574-75, 570 S.E.2d at 839-40.

In the present case, Officer Davis admitted in his

testimony that over-the-counter medications such as “Motrin,

Tylenol, or something along those lines” are sometimes “packaged

in capsules.” Common experience in the purchase of these legal

medications supports this admission. Moreover, it is self-

evident that if an item may just as well be a legal medication

dispensed in capsule form or a capsule containing an illegal

drug, its character as the latter cannot be readily apparent by

feeling a suspect’s outer clothing that contains the item

inside.

In that context, the Court of Appeals acknowledged that

“feeling the capsules alone may not be sufficient probable

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cause” to support the warrantless seizure of the capsules in

question. Cost, 49 Va. App. at 227, 638 S.E.2d at 719. In an

effort to distinguish our decision in Murphy, the Court of

Appeals reasoned that Cost had “attempted to conceal the drugs,

failed to heed the officer’s demand that he cease the furtive

behavior, and failed to respond to the officer’s questions.”

Id. at 227, 638 S.E.2d at 720.

We disagree with the Court of Appeals’ characterization of

Cost’s actions as “furtive” and its conclusion that Cost

“attempted to conceal the drugs.” Even viewed in the light most

favorable to the Commonwealth, the evidence does not show that

Cost did anything by stealth or in a surreptitious manner.

According to Officer Davis’ testimony, Davis was readily able to

observe all of Cost’s actions. There is no evidence to even

suggest that Cost attempted to remove the drugs from his pocket

and secrete them in some other place. There is no evidence that

Cost attempted to conceal the drugs; they were already in his

pocket. Cost’s failure to respond to the officer’s questions is

of no particular significance because Cost was under no

obligation to respond to Davis’s questions. Moreover, Cost

complied with Davis’s order to exit the vehicle and immediately

consented to the pat-down search by Davis.

In sum, whatever significance Cost’s actions may have had

in supporting Davis’ suspicions regarding Cost under the

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totality of the circumstances, they relate to the justification

for the pat-down search conducted by Davis for a possible

concealed weapon. Whether those circumstances support the

seizure of the capsules is another matter. In Murphy, the

“totality of circumstances” was, if anything, more suggestive of

the presence of contraband. Murphy was subject to a lawful pat-

down search for weapons when he was found in a residence where

police executed a “search warrant [that] authorized the police

to search ‘the entire residence’ for ‘marijuana, cocaine,

cocaine base, heroin, scales, ledgers, logs, money, guns, phone

bills, syringes and any other item that would be connected with

the illegal sale and/or use of any other illegal narcotic or

non-prescription drug.’ ” Murphy, 264 Va. at 571, 570 S.E.2d at

837. Yet, in that case we held that marijuana contained in a

plastic bag in the suspect’s pants pocket was illegally seized

during a pat-down search because the character of the baggie’s

contents as contraband was not immediately apparent.

Here, the character of the capsules seized from Cost’s

pants pocket could not have been immediately apparent to Officer

Davis as a result of the pat-down search. Cost’s movements and

his failure to respond to the officer’s questions supported a

well-educated “hunch,” but were insufficient to establish

probable cause required to permit a warrantless seizure of the

capsules from inside Cost’s pants packet. See e.g., Graham v.

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State, 893 S.W.2d 4, 6 (Tex. Ct. App. 1994). Accordingly, we

hold that the Court of Appeals erred in affirming the judgment

of the circuit court overruling Cost’s motion to suppress the

evidence illegally seized from his person under the Fourth

Amendment of the United States Constitution.

CONCLUSION

For these reasons, we will reverse the judgment of the

Court of Appeals. Because the evidence seized from Cost should

have been suppressed, there would be insufficient evidence to

sustain Cost’s conviction for possession of heroin with intent

to distribute in any retrial. Accordingly, Cost’s conviction

will be reversed, and the indictment against him will be

dismissed. Jackson v. Commonwealth, 267 Va. 666, 681, 594

S.E.2d 595, 603 (2004).

Reversed and dismissed.

JUSTICE LEMONS, with whom JUSTICE KINSER joins, dissenting.

In this case, it is important to remember that we are not

dealing with certainties or even a standard requiring proof

“beyond a reasonable doubt,” rather, we must consider

probabilities.

The legal standard of probable cause, as
the term suggests, relates to probabilities
that are based upon the factual and practical
considerations in everyday life as perceived by
reasonable and prudent persons. The presence
or absence of probable cause is not to be
examined from the perspective of a legal

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 technician. Rather, probable cause exists when
the facts and circumstances within the
officer’s knowledge, and of which he has
reasonably trustworthy information, alone are
sufficient to warrant a person of reasonable
caution to believe that an offense has been or
is being committed. Draper v. United States,
358 U.S. 307, 313 (1959); Schaum v.
Commonwealth, 215 Va. 498, 500, 211 S.E.2d 73,
75 (1975). In order to ascertain whether
probable cause exists, courts will focus upon
“what the totality of the circumstances meant
to police officers trained in analyzing the
observed conduct for purposes of crime
control.” Hollis v. Commonwealth, 216 Va. 874,
877, 223 S.E.2d 887, 889 (1976).

Taylor v. Commonwealth, 222 Va. 816, 820-21, 284 S.E.2d 833, 836

(1981).

Cost gave the officer permission to conduct a “pat-down”

but did not give permission for the officer to reach into his

pockets. However, upon conducting the “pat-down” by consent,

the officer detected “numerous capsules” in Cost’s pocket. In

Minnesota v. Dickerson, 508 U.S. 366 (1993), the Supreme Court

discussed the seizure of contraband detected by sense of touch

during a “pat-down” search. The Court stated:

If a police officer lawfully pats down a
suspect’s outer clothing and feels an object
whose contour or mass makes its identity
immediately apparent, there has been no
invasion of the suspect’s privacy beyond that
already authorized by the officer’s search for
weapons; if the object is contraband, its
warrantless seizure would be justified by the
same practical considerations that inhere in
the plain-view context.

Id. at 375-76.

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 The officer reached into Cost’s left pants pocket and

removed a plastic bag containing 20 capsules subsequently

determined to contain heroin. If the justification for the

search of Cost’s pocket depended solely upon the “plain feel” of

a capsule in the pocket, the officer could not lawfully search

Cost’s pocket. But the justification in this case is based upon

other circumstances as well.

It was immediately apparent to the officer that the items

in Cost’s pocket were capsules. The totality of the

circumstances, which a court is required to consider, give

probable cause that the capsules contained an illegal substance.

Cost was a passenger in a parked car when the encounter began.

When the officer approached the car on the passenger side, Cost

“immediately reached across his body towards his left front

pants pocket.” The officer asked Cost what he was reaching for,

and Cost did not reply. The officer directed Cost to “get away

from the pocket.” Cost disregarded the officer’s direction and

again reached for his left front pants pocket. Cost was ordered

to exit the car, whereupon a consensual “pat-down” occurred.

The totality of the circumstances included furtive gestures

toward the pocket where the contraband was located. Furtive

gestures alone may not be sufficient to establish probable

cause; however, furtive gestures coupled with other indicia of

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criminal activity may suffice to establish probable cause. See

Sibron v. New York, 392 U.S. 40, 66 (1968); 2 Wayne R. LaFave,

Search and Seizure § 3.6(d), at 351-52 (4th ed. 2004) (“if

police see a person in possession of a highly suspicious object

or some object which is not identifiable but which because of

other circumstances is reasonably suspected to be contraband,

and [also] observe that person make an apparent attempt to

conceal that object . . . , probable cause is then present”).

The officer detected not one or two capsules, but

“numerous” capsules. As the evidence demonstrated, there were

20 capsules in the plastic bag in the pocket. Certainly, it is

not impossible that someone would carry vitamins or other legal

medication in capsules in a pocket. But we are not dealing with

possibilities, we are directed to consider probabilities in this

analysis. Additionally, we must consider the specialized

training of the officer who, at the time of trial had made 50 –

60 drug arrests and had specialized training on packaging of

narcotics.

The majority states that it disagrees with the Court of

Appeals opinion that characterizes Cost’s gestures as “furtive.”

It was the Commonwealth at trial that characterized Cost’s

gestures as “furtive.” The trial court ruling must be

considered in the context of the evidence and the arguments

advanced by the parties. The Court of Appeals opinion does

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exactly what we have stated numerous times is the role of an

appellate court. Appellate courts are not fact-finders.

Appellate courts are called upon to determine if the facts are

sufficient to support a trial court judgment. But an appellate

court is not permitted to substitute its judgment concerning the

facts for that of the trial court. Here, the majority engages

in recharacterization of the facts.

The majority opinion affirms the principle that a reviewing

court analyzing a suppression motion must consider the totality

of the circumstances. But the majority does not apply the

principle in this case.

In Ball v. United States, 803 A.2d 971, 972 (D.C. 2002),

the court reviewed a trial court’s refusal to suppress the

evidence. In Ball, the defendant had been a passenger in a

motor vehicle stopped for a traffic infraction. When the

officer approached the car, the defendant began “to move his

left hand and he was trying to cover his abdomen area with a

newspaper which was seated on the seat next to him.” Id. at

973. Upon directing the defendant to exit the car, he

“immediately put his hands in his jacket pocket.” Id. The

officer ordered the defendant to remove his hands from the

pocket and as the defendant complied, he once again “attempted

to place his right hand in his right front jacket pocket.” Id.

Before the encounter was over, the defendant attempted to reach

15
into the same pocket for a third time. Upon a protective “pat-

down” for weapons, the officer “felt a large cylinder container

which [he] thought to be a large medicine bottle,” and “because

[the defendant] made several attempts to go into his pocket and

remove it” the officer concluded that it was probable that the

medicine bottle contained contraband. Id. The court affirmed

the denial of the motion to suppress based upon the totality of

the circumstances including the officer’s training in packaging

of narcotics. The court concluded:

Viewed against the officer’s experience,
appellant’s conduct added enough information to
cross the threshold from reasonable suspicion
that appellant might have a weapon in his
jacket pocket to probable cause that he had
drugs in the medicine bottle felt in the
pocket.

Id. at 982.

In the case of State v. Briggs, 536 S.E.2d 858 (N.C. Ct.

App. 2000), the Court of Appeals of North Carolina affirmed the

trial court’s refusal to suppress a cigar holder seized after an

officer conducted a “pat-down” for weapons and discerned the

presence of the object in a pocket. Using a totality of the

circumstances analysis, the court stated:

Accordingly, we consider the numerous
facts and circumstances surrounding the
officer’s seizure of the cigar holder in
determining whether seizure of the cigar holder
was lawful. Here, the hour was late and
defendant was stopped in a "high crime" area.
The officer had previously arrested the

16
 defendant for possession of controlled
substances and knew defendant was on probation
for such an arrest at the time of the stop.
The officer smelled burned cigar in defendant’s
vehicle and on defendant, and was aware that
burning cigars were commonly used to mask the
smell of illegal substances. Defendant had
previously stated he did not smoke cigars. His
eyes were red and glassy, and his behavior
suggested possible usage of a controlled
substance. Furthermore, the officer’s
experience made him aware that cigar holders
were commonly used to store controlled
substances. Considering these facts and
circumstances, [the officer] had sufficient
information to warrant a person of reasonable
caution in the belief that the item he detected
contained contraband. Absent any evidence
indicating impermissible manipulation of the
object by the officer, we conclude seizure of
the cigar holder in this case was lawful.

Id. at 863-64 (citations omitted).

I can summarize it no better than Judge Frank did in his

opinion in the Court of Appeals:

While feeling the capsules alone may not
be sufficient probable cause, the totality of
the circumstances gave the officer probable
cause to believe the numerous capsules
contained illicit drugs. Appellant attempted
to conceal the drugs, failed to heed the
officer’s demand that he cease the furtive
behavior, and failed to respond to the
officer’s questions. See generally 2 Wayne R.
LaFave, Search & Seizure § 3.6(f), at 364 (4th
ed. 2004) (explaining that "refusal to answer
is one factor which an officer may consider,
together with evidence that gave rise to his
prior suspicion, in determining whether there
are grounds for arrest"). Based on the
totality of the circumstances, consisting of
furtive movements and suspicious conduct,
culminating in the officer feeling numerous
capsules, which based on the officer’s

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 training and experience contained heroin, the
officer had probable cause to seize the
capsules.
The trial court did not err in denying
the motion to suppress.

Cost v. Commonwealth, 49 Va. App. 215, 227-28, 638 S.E.2d 714,

719-20 (2006).

I would affirm the judgment of the Court of Appeals.

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