Present: Hassell, C.J., Lacy, Koontz, Kinser, Lemons, and
Agee, JJ., and Russell, S.J.
TAVARES LAMONT BROWN
v. Record No. 050639 OPINION BY JUSTICE ELIZABETH B. LACY
November 4, 2005
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal we determine whether, based on the
totality of the circumstances, a police officer had probable
cause to arrest an individual seen holding a hand-rolled
cigarette.
FACTS AND PROCEEDINGS
Officer Edward C. Lambert, III's supervisor instructed
him to patrol a particular block of Lakeview Avenue in
Richmond, Virginia, because of several recent shootings and a
homicide in the area. One morning while patrolling the area,
Officer Lambert observed a red automobile parked in an alley
in a manner that would not allow a wide emergency vehicle to
pass through the alley. Officer Lambert got out of his patrol
car and, as he approached the vehicle, four men standing
nearby quickly walked away in different directions. When he
reached the red car, Officer Lambert saw the defendant,
Tavares Lamont Brown, asleep in the passenger seat holding a
partially-burned, hand-rolled cigarette in one hand and a
lighter in the other. Officer Lambert woke Brown up, took the
items out of his hands, and asked him to step out of the
vehicle. The record does not reflect Officer Lambert observed
any drug related items in the vehicle or around Brown.
Further, Officer Lambert testified that he later smelled the
cigarette and "did not believe it to be marijuana" because "it
smelled like tobacco."
A subsequent search of Brown's pockets produced a folded
$5.00 bill. Laboratory tests showed that the hand-rolled
cigarette and the folded money contained traces of cocaine and
heroin, respectively.
Brown was charged with possession of cocaine and
possession of heroin, violations of Code § 18.2-250. He filed
a motion to suppress the evidence arguing that it "was
obtained during a warrantless and unlawful search." At the
suppression hearing, Officer Lambert testified that Brown was
seized "when [Officer Lambert] approached the vehicle and saw
the hand[-]rolled item in his hand." Officer Lambert further
testified that, based on his 19 years of law enforcement
experience during which he saw over 100 hand-rolled cigarettes
each containing a controlled substance, he "knew" Brown's
hand-rolled cigarette contained a controlled substance. On
cross-examination, Officer Lambert agreed that some people
roll their own tobacco cigarettes.
2
At the conclusion of the suppression hearing, the trial
court denied Brown's motion to suppress, finding Officer
Lambert had probable cause to search Brown:
In looking at the totality of the circumstances and
looking at the car blocking an alley, four males
standing near the car and then dispersing when the
police officer shows up, the fact that this
gentleman is sound asleep in the car at 7:30 a.m.
in the morning, the fact that this officer
testified that the smoking item in his experience
of more than hundreds of times he's encountered the
situation it has never contained just tobacco, his
strong belief about the fact that it contained an
illegal substance, I believe he had probable cause
to arrest this individual and any search subsequent
to that arrest was legal and valid.
In a bench trial, the trial court found Brown guilty on
both charges and sentenced him to a total of 20 years
imprisonment with 16 years and 6 months suspended. The Court
of Appeals of Virginia affirmed the trial court's judgment.
Brown v. Commonwealth, No. 0160-04-2 (February 22, 2005).
Brown then appealed to this Court.
DISCUSSION
Brown argues here, as he did in the trial court and Court
of Appeals, that Officer Lambert did not have probable cause
to arrest him and, therefore, the evidence of cocaine and
heroin should have been suppressed as the fruit of an
1
unconstitutional search.
1
We note that Officer Lambert searched Brown before
officially arresting him. This does not affect our probable
3
The Fourth Amendment to the United States Constitution
safeguards the privacy and security of individuals against
arbitrary invasions by governmental officials. Camara v.
Municipal Court, 387 U.S. 523, 528 (1967). Searches and
seizures may be conducted in compliance with the Fourth
Amendment if they are reasonable. Elkins v. United States,
364 U.S. 206, 222 (1960). Searches and seizures conducted
pursuant to a particularized warrant based on probable cause
as adjudged by a magistrate are reasonable. See Massachusetts
v. Sheppard, 468 U.S. 981, 987-91 (1984); McDonald v. United
States, 335 U.S. 451, 455-56 (1948). Because law enforcement
will not always be in a position to secure a warrant prior to
detaining or searching persons suspected of criminal activity,
searches and seizures based on probable cause that the
individual is engaged in criminal activity are also reasonable
for purposes of the Fourth Amendment. Whren v. United States,
517 U.S. 806, 819 (1996); United States v. Watson, 423 U.S.
411, 423-24 (1976).
Whether an officer has probable cause to arrest an
individual in the absence of a warrant is determined under an
objective test based on a reasonable and trained police
cause analysis because a search conducted before an arrest is
not invalid if probable cause to arrest the person existed at
the time of the search. See Italiano v. Commonwealth, 214 Va.
334, 336, 200 S.E.2d 526, 528 (1973).
4
officer's view of the totality of the circumstances. See
Parker v. Commonwealth, 255 Va. 96, 106, 496 S.E.2d 47, 53
(1998). On appellate review, we give deference to the
historical facts determined by the trial court, but we review
de novo whether the legal standard of probable cause was
correctly applied to the historical facts. Jackson v.
Commonwealth, 267 Va. 666, 672, 594 S.E.2d 595, 598 (2004);
see Ornelas v. United States, 517 U.S. 690, 699 (1996). To
determine whether probable cause exists, we "will focus upon
'what the totality of the circumstances meant to police
officers trained in analyzing the observed conduct for
purposes of crime control.' " Taylor v. Commonwealth, 222 Va.
816, 820-21, 284 S.E.2d 833, 836 (1981) (quoting Hollis v.
Commonwealth, 216 Va. 874, 877, 223 S.E.2d 887, 889 (1976)).
In this case, the probable cause requirement arose when
Officer Lambert approached the car and saw the hand-rolled
cigarette, the point at which the parties agree Brown was
seized. Thus, the circumstances relevant to the probable cause
determination are the position of the red car in an alley in
an area Officer Lambert had been instructed to patrol, the
dispersal of four men when Officer Lambert approached the red
car, finding of Brown asleep in the car at 7:30 a.m. with a
partially-burned, hand-rolled cigarette in his hand, and the
strong belief of Officer Lambert that the hand-rolled
5
cigarette contained a controlled substance based on his prior
experience with hand-rolled cigarettes.
The red car's position and the dispersal of the four men
could indicate criminal activity under some circumstances;
however, here, the basis for such indication could no longer
be supported when Officer Lambert found Brown asleep in the
car. Brown was not engaged in any activity implicating the
position of the car or the other men. The Court of Appeals
also referred to the area as a "high crime" area, but this
characterization and the directive to patrol the area were
based on a recent history of violent crimes and, again,
provided no support to the proposition that the sleeping Brown
was engaged in such activities.
Officer Lambert's experience with controlled substances
and his observation of a hand-rolled cigarette in Brown's hand
undoubtedly support Officer Lambert's suspicion that Brown may
have been engaged in criminal activity. We have considered a
number of instances in which an officer's expertise and
training made his observation of an item suspected to contain
contraband a significant factor in the probable cause
analysis. In none of these cases, however, has that fact
alone supported a finding of probable cause when the
suspicious item is also capable of legitimate use.
6
In Matthews v. Commonwealth, 218 Va. 1, 2, 235 S.E.2d
306, 306 (1977), an officer stopped Matthews for speeding and
observed a "pack of cigarette wrapping papers" and a "folded
brown paper bag." We held the officer did not have probable
cause to look inside the bag because the connection he made
between the bag and the cigarette wrapping papers "was not
combined with any other circumstance which might have
justified a rational belief that the bag contained contraband
drugs." Id. at 3, 235 S.E.2d at 307. Similarly, in Harris v.
Commonwealth, 241 Va. 146, 154, 400 S.E.2d 191, 196 (1991), we
rejected the Commonwealth's argument that an officer had
probable cause to open a film canister found during a valid
investigatory stop and pat down because the officer recognized
it as a container often used to hold drugs. We observed that
although in the officer's experience people kept drugs in film
canisters, law-abiding citizens used film canisters for
legitimate purposes, and we concluded that no probable cause
existed because the only other evidence to support a finding
of probable cause in that case was a report from an informant
who was not shown to be reliable. Id.
We have found that the requisite probable cause for a
warrantless search of a vehicle existed based on the police
officer's belief that a hand-rolled cigarette held by a
passenger contained marijuana combined with the passenger's
7
actions in attempting to hide or get rid of the hand-rolled
cigarette. Hollis, 216 Va. at 877, 223 S.E.2d at 889. In
Lawson v. Commonwealth, 217 Va. 354, 355, 228 S.E.2d 685, 686
(1976), the officer testified that he observed a yellow bag
that "looked like a 'nickel bag of marijuana.' " We concluded
that the totality of the circumstances supported a finding of
probable cause to arrest a passenger in a vehicle because
officers observed the driver and passenger repeatedly pass the
yellow bag between them and the passenger locked the car door
as the officers approached the car. Id. at 357-58, 228 S.E.2d
at 687.
These cases show that for the last 25 years, this Court
has consistently declined to find that probable cause can be
established solely on the observation of material which can be
used for legitimate purposes, even though the experience of an
officer indicates that such material is often used for
illegitimate purposes. To support a finding of probable
cause, such observations must be combined with some other
circumstance indicating criminal activity. This requirement
is consistent with that of many other jurisdictions that have
considered the issue. See, e.g., United States v. Anderson,
401 F.Supp. 996, 1000 (E.D. Tenn. 1975) (officer did not have
probable cause to arrest upon observing a " 'home-made
looking' cigarette in the ashtray" of a car because he "had no
8
way of knowing at that instant whether it contained tobacco,
corn-silks, 'rabbit-tobacco', [sic] marijuana or a myriad of
other combustible substances"); Thomas v. Superior Court, 99
Cal. Rptr. 647, 652 (Ct. App. 1972) (presence of hand-rolled
cigarette insufficient to form probable cause without
"evidence of other circumstances such as attempted concealment
of the item, the defendant's distinctive manner of smoking it,
the odor of burned marijuana, the defendant's evasiveness or
abnormal physical condition, an admission by the defendant, or
the arresting officer's expertise on the subject"); Caplan v.
State, 531 So.2d 88, 91-92 (Fla. 1988) (the mere observation
of a hand-rolled cigarette without more cannot constitute
probable cause); People v. Wright, 400 N.E.2d 731, 733-34
(Ill. App. Ct. 1980) (mere observation of a hand-rolled
cigarette does not without additional circumstances furnish
reasonable cause to arrest the suspect or seize the item);
State v. Ball, 471 A.2d 347, 353 (N.H. 1983) ("To transform
mere suspicion about the contents of the hand-rolled cigarette
into a reasonable belief based on probable cause, the officer
must articulate additional corroborating facts."); see also 2
Wayne R. LaFave, Search and Seizure § 3.6(b), at 317-18 (4th
ed. 2004).
Because Officer Lambert's strong suspicion that the hand-
rolled cigarette in Brown's possession contained contraband
9
was not sufficient by itself to establish probable cause to
arrest Brown, and because as explained above, the other
relevant circumstances could not support a reasonable
conclusion that the sleeping Brown was engaged in criminal
activity, the conclusion that the totality of the
circumstances established probable cause to arrest Brown was
error.2
CONCLUSION
Considering the totality of the circumstances, Officer
Lambert did not have probable cause to arrest and search Brown
and, thus, the trial court erred in denying Brown's motion to
suppress the evidence. Accordingly, we will reverse the
judgment of the Court of Appeals, vacate Brown's convictions,
and remand the case to the Court of Appeals with direction to
remand the matter to the trial court for further proceedings,
if the Commonwealth be so advised.
Reversed and remanded.
2
The Commonwealth also argues that even if Officer
Lambert lacked probable cause, the evidence could have been
admitted under the doctrine of inevitable discovery. The
Commonwealth did not raise this argument below, and we will
not consider an alternative argument raised for the first time
on appeal. See Eason v. Eason, 204 Va. 347, 352, 131 S.E.2d
280, 283 (1963).
10