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
2
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.
3
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,
4
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
5
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
7
‘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
8
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
9
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.
10
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
11
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
13
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
14
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
17
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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