Christian v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Benton, Coleman, Elder,
Bray, Bumgardner, Humphreys and Senior Judge Cole
Argued at Richmond, Virginia

RICKY ARNEZ CHRISTIAN
OPINION BY
v. Record No. 0558-98-1 JUDGE RICHARD S. BRAY
NOVEMBER 7, 2000
COMMONWEALTH OF VIRGINIA

UPON A REHEARING EN BANC

FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Robert P. Frank, Judge

(Robert Moody, IV; Timothy S. Fisher; Kinick,
Segall, Moody & Lewis; Overman & Cowardin,
P.L.C., on brief), for appellant.

Shelly R. James, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.

Ricky Arnez Christian (defendant) was convicted in a bench

trial for possession of cocaine with intent to distribute, a
violation of Code § 18.2-248, and related firearm offenses. On

appeal, he complains that the trial court erroneously refused to

suppress evidence seized during an unlawful detention and,

additionally, challenges the sufficiency of the evidence to prove

the requisite intent to distribute the offending drugs. Finding

no error, a panel of this Court affirmed the convictions. Upon

rehearing en banc, we, likewise, affirm the trial court.

I.
 Upon review of both a denial of a motion to suppress and a

challenge to the sufficiency of the evidence, we consider the

record in the light most favorable to the prevailing party below,

the Commonwealth in this instance. Bynum v. Commonwealth, 23 Va.

App. 412, 414-15, 477 S.E.2d 750, 751-52 (1996).

On the evening of October 4, 1996, officers of the Newport

News Police Narcotics Enforcement Unit were conducting a "drug

reverse [sting] operation in Fairfield Apartments," undertaken in

response to "a lot of complaints in reference to drug sales in

that area," "a high drug area." "[V]ice and narcotics" Officer

W.L. Stokes acted as "security for two female officers [in "plain

clothes"] who . . . were making sales of imitation cocaine to

people who walked up or drove up in the area." The undercover

officers were equipped with hidden communication devices and,

following each transaction, notified an "apprehension team,"

assembled in the laundromat office of a nearby apartment

building, to arrest the purchaser. The office, located "just

inside the doorway" of the building, opened directly into a

foyer, which also accessed two occupied apartments.
In the midst of the ongoing undercover police activity, at

approximately 10:15 p.m., Officer Stokes noticed someone holding

a "gun," walking directly toward the apartment building. Via the

communication link, he quickly advised the team that a person was

approaching with "a gun in his hand." Alerted by Stokes, Officer

T.G. Lecroy, the team member assigned "to prevent anyone from

getting hurt," observed the individual "come through the door,

saw a gun, took the gun from him" and escorted him into the

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"office area." 1 Once inside, Lecroy immediately recognized

defendant and, aware he was a convicted felon, arrested him for

possession of the firearm. A related search of defendant

disclosed a plastic bag containing 2.3 grams of cocaine, a pager,

and $935, "broken into nine $100 bundles," with the balance "just

loose in his pocket." No "means of ingesting" the cocaine was

found on defendant's person.

After advising defendant of his Miranda rights, Lecroy

"asked . . . how much cocaine he had started with," and defendant

answered, "a large eight-ball," "drug . . . terminology"

referencing one-eighth of an ounce of cocaine, approximately 3.5

grams. Upon further inquiry, defendant stated that he obtained

the cocaine from "Wooten," an individual known to Lecroy as "into

dealing narcotics."
Officer M.L. Davenport, an expert in "drug matters," opined

that possession of an "eightball" of cocaine, together with the

pager, cash and weapon, was "inconsistent with personal use" of

1
Asked on cross-examination, "why did you seize this
gentleman," Lecroy responded,

When we have undercover officers out in
the parking lot which are conducting sales
of illegal drugs, imitation illegal drugs,
my concern is for their safety along with
anyone else that I may be working with if I
– and any other people who may be in the
area.

When I heard that a man had a gun in
the middle of a high drug area which – which
we wouldn't have been there if it wasn't a
high drug area, then I'm going to take it
from him and find out what his purpose is
for being there.

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the drug. Davenport explained that a pager provides

communication to "persons in the drug trade" and "weapons . . . a

means of protection." He noted that "large amounts of money"

derived from "drug distribution" are oftentimes packaged in

"hundred dollar increments" because "[i]t's easier to count." On

cross-examination, Davenport added that users of cocaine will,

"in most cases," carry on their person "some means" of consuming

the drug. Questioned further, he approximated the "street value"

of an "eightball" at "one fifty to two twenty-five."
Defendant testified that, on the day of arrest, he cashed

his weekly "paycheck," "seven hundred and some dollars, . . .

[and] arranged [his] money," commingling the funds with $500

already in his possession. He subsequently purchased "about an

eight-ball" of cocaine for personal use and "took [several] hits"

in his wife's car before approaching the apartment building. At

the time of the offense, defendant was regularly earning $7.71

per hour over a forty-hour workweek, resulting in $251.28 net pay

for the period.

II.

Defendant first complains that he was unlawfully seized by

Officer Lecroy, requiring suppression of all evidence

subsequently obtained by police. See Mapp v. Ohio, 367 U.S. 643,

655 (1961).

"Ultimate questions of reasonable suspicion and probable

cause to make a warrantless . . . seizure involve issues of both

law and fact and are reviewed de novo on appeal." Glasco v.

Commonwealth, 26 Va. App. 763, 770-71, 497 S.E.2d 150, 153

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(1998) (citation and internal quotations omitted). However,

"[i]n performing such analysis, we are bound by the trial

court's findings of historical fact unless 'plainly wrong' or

without evidence to support them and we give due weight to the

inferences drawn from those facts by resident judges and local

law enforcement officers." McGee v. Commonwealth, 25 Va. App.

193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citation

omitted). "In reviewing a trial court's denial of a motion to

suppress, 'the burden is upon appellant to show that this

ruling, when the evidence is considered most favorably to the

Commonwealth, constituted reversible error.'" Glasco, 26 Va.

App. at 770, 497 S.E.2d at 153 (citation omitted).

In resolving defendant's argument, we find it helpful to

revisit Terry v. Ohio, 392 U.S. 1 (1968), the landmark decision

of the Supreme Court of the United States that addressed the

Fourth Amendment implications of the detention and pat-down of a

citizen by police investigating suspicious conduct. In Terry,
Cleveland Police Officer Martin McFadden, a detective with

thirty-five years experience, was patrolling the "vicinity . . .

downtown . . . for shoplifters and pickpockets" when his

"attention was attracted by" defendant and a companion "standing

on [a] corner." Id. at 5. As McFadden watched, each man in turn

repeatedly "walk[ed] . . . past some stores[,] . . . paused for a

moment and looked in a store window, . . . walked on . . .,

turned around" and returned to the corner to confer with the

other, "looking in the same window" en route. Id. at 6. After

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ten or twelve minutes of such behavior, the two, then joined by a

third man, "walked off." Id.

Suspicious that the men were "casing a job, a stick up,"

McFadden decided "that the situation was ripe for action,"

approached the three, identified himself and "asked for their

names." Id. at 6-7. Receiving a "'mumbled' . . . 'response'"

and fearful "'they may have a gun[,]'" he "grabbed [Terry], . . .

spun him around . . ., and patted down the outside of his

clothing[,]" discovering a pistol. 2 Id. Terry was then arrested

and subsequently convicted of a weapons offense. Id. at 7. On

appeal, he advanced a Fourth Amendment challenge to the

constitutionality of the stop, seizure and search.

In affirming Terry's conviction, the Court recognized that

"effective crime prevention and detection" often requires "swift

action predicated upon the on-the-spot observations" of police.

Id. at 20, 22. However, the Court cautioned that, to comport

with the "Fourth Amendment's general proscription against

unreasonable searches and seizures[,]" police acting in response

to such circumstances "must be able to point to specific and

articulable facts which, taken together with rational inferences

from those facts, reasonably warrant . . . intrusion" upon the
3
protected interests of citizens. Id. at 20-21. Thus, the

dispositive inquiry becomes, "would the facts available to the

2
A similar search of the others revealed a second handgun.
Id. at 7.
3
The Court expressly noted that Terry's conduct, although
"innocent in itself," became suspicious when "taken together"
with other circumstances and "warranted further investigation."
Id. at 22 (emphasis added).

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officer at the moment of the seizure or the search 'warrant a man

of reasonable caution in the belief' that the action taken was

appropriate?[,]" an objective test. Id. at 21-22 (citation

omitted). If so, "a police officer may in appropriate

circumstances and in an appropriate manner approach a person for

purposes of investigating possibly criminal behavior even though

there is no probable cause to make an arrest." Id. at 22.

The "crux" of Terry, however, was not the propriety of

McFadden's "steps to investigate . . . suspicious behavior," but,

rather, the "invasion of Terry's personal security by searching

him for weapons in the course of that investigation[,]" an issue

related to the more "immediate interest of the police officer in

taking steps to assure . . . that the person . . . is not armed

with a weapon that could . . . be used against him." Id. at 23.

Unwilling to expose police to "unnecessary risks[,]" the Court

refused to "blind [itself] to the need for law enforcement

officers to protect themselves and other prospective victims of

violence in situations where they may lack probable cause for an

arrest." Id. at 23-24 (emphasis added). Accordingly, "[w]hen an

officer is justified in believing that the individual whose

suspicious behavior he is investigating at close range is armed

and presently dangerous to the officer or to others, it would

. . . be clearly unreasonable to deny . . . the power to take

necessary measures to determine . . . and to neutralize the

threat . . . ." Id. at 24 (emphasis added).

Thus, like the objective test for reasonable suspicion, "the

issue is whether the reasonably prudent man in the circumstances

would be warranted in the belief that his safety or that of

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others was in danger." Id. at 27 (emphasis added). If so,

police may undertake a search and related seizure appropriate to

the "concrete factual circumstances of individual cases,"

"confined in scope to an intrusion reasonably designed to

discover "hidden instruments" that threaten both police and

others. Id. at 29.

Applying these companion principles to the facts in Terry,

the Court noted that McFadden had observed Terry and his

companions engage in a pattern of conduct which, though lawful,

was "unusual" and reasonably supported a police officer,

"experience[d] in the detection of thievery," in the "hypothesis

that these men were contemplating a daylight robbery . . . likely

to involve weapons." Id. at 23, 28. The Court, therefore,

concluded that the circumstances provided sufficient

justification for the encounter, seizure and "pat down" of Terry,

limited acts "necessary for the protection of [McFadden] and

others" in the pursuit of an appropriate investigation. Id. at

30.

Several years after deciding Terry, the Court, in Adams v.
Williams, 407 U.S. 143 (1972), again considered the Fourth

Amendment implications of an investigatory seizure and search of

a citizen. There, Bridgeport Connecticut Police Sergeant John

Connolly received a tip, deemed reliable by the Court, that

Williams, then seated in a nearby vehicle, was "carrying

narcotics and had a gun at his waist." Id. at 144-45. Connolly,

alone at 2:15 a.m. on "car patrol duty" in a "high-crime area,"

"approached the vehicle to investigate the . . . report," "tapped

on the car window and asked . . . Williams[] to open the door."

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Id. When Williams instead "rolled down the window[,]" Connolly

"reached into the car and removed a fully loaded revolver from

Williams' waistband." Id. at 145.

In a resulting prosecution for illegal possession of the

weapon, Williams challenged the admissibility of the evidence,

complaining that it was the fruit of an unlawful search and

seizure. Id. In affirming the conviction, the Supreme Court

recalled the lessons of Terry, concluding that

[t]he Fourth Amendment does not require a
policeman . . . to simply shrug his
shoulders and allow a crime to occur or a
criminal to escape. On the contrary, Terry
recognizes that it may be the essence of
good police work to adopt an intermediate
response. A brief stop of a suspicious
individual in order to determine his
identity or to maintain the status quo
momentarily while obtaining more
information, may be most reasonable in light
of the facts known to the officer at the
time.

Id. at 145-46 (citation omitted) (emphasis added).

Moreover, the Court again emphasized that police engaged in

an "investigatory stop" "may conduct a limited protective search
for concealed weapons" whenever justified in the belief that the

subject is armed and dangerous. Id. at 146. Echoing Terry, the

Court reasoned that such intrusion

is not to discover evidence of crime, but to
allow the officer to pursue his
investigation without fear of violence, and
thus the frisk for weapons might be equally
necessary and reasonable, whether or not
carrying a concealed weapon violated any
applicable state law. So long as the
officer is entitled to make a forcible stop,
and has reason to believe that the suspect
is armed and dangerous, he may conduct a

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 weapons search limited in scope to this
protective purpose.

Id. (emphasis added).

In the years following Terry, Williams and their progeny, 4

our Court has frequently cited such decisions with approval,

incorporating the attendant principles as familiar guideposts in

our jurisprudence. Faithful to the rationale of Terry, we have

resolved countless fact-specific "stop and frisk" appeals,

consistently instructing that

"[t]here is no 'litmus test' for reasonable
suspicion. Each instance of police conduct
must be judged for reasonableness in light
of the particular circumstances." "In order
to determine what cause is sufficient to
authorize police to stop a person,
cognizance must be taken of the 'totality of
the circumstances –- the whole picture.'"

Harmon v. Commonwealth, 15 Va. App. 440, 445, 425 S.E.2d 77, 79

(1992) (citations omitted). Circumstances we have recognized as

relevant in a Terry/Williams analysis include characteristics of

the area surrounding the stop, the time of the stop, the specific

conduct of the suspect individual, the character of the offense

4
Recently, in Illinois v. Wardlow, 120 S. Ct. 673 (2000),
the Court once more reaffirmed Terry, approving an investigatory
stop and related "pat-down search" of a citizen pursued and
detained after fleeing at the sight of police. Id. at 675-77.
The Court acknowledged "that there are innocent reasons for
flight from police," id. at 677, but reasoned that "[h]eadlong
flight – whenever it occurs – is the consummate act of evasion:
it is not necessarily indicative of wrongdoing but . . .
certainly suggestive of such." Id. at 676. Thus, again, the
reasonable suspicion requisite to a Terry stop arose from lawful
conduct that assumed a suspicious appearance when viewed with
"commonsense judgments and inferences about human behavior." Id.
Doubtless, such investigatory authority clearly imposes the "risk
that officers may stop innocent people," but "Terry accepts the
risk," permitting a "minimal intrusion . . . allowing [police] to
investigate further." Id. at 677.

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under suspicion, 5 and the unique perspective of a police officer

trained and experienced in the detection of crime. Williams v.

Commonwealth, 4 Va. App. 53, 67, 354 S.E.2d 79, 86-87 (1987).

Here, police observed defendant suddenly appear, displaying

a firearm, late at night, in an area notorious for "drug sales."

Defendant's presence coincided with an ongoing police operation

that involved several undercover officers in the sale of

imitation illegal drugs, clearly an environment conducive to

unlawful conduct and fraught with danger. With weapon in hand,

defendant proceeded directly to an apartment building occupied

both by police and residents. Confronted with such

circumstances, police, experienced in the deadly mix of guns and

narcotics and other violent crimes, reasonably suspected criminal

activity which posed an immediate threat both to themselves and

others, justifying a brief investigatory detention. In

undertaking the encounter, Lecroy, the officer responsible for

operational safety, was entitled to seize defendant and take

control of the weapon, thereby neutralizing an imminent threat in

a prudent and measured fashion. Had police ignored the full

import of defendant's conduct, although perhaps facially lawful,

and a tragedy resulted, the folly of such indifference would have

been apparent.
When, during the course of the stop, defendant was

identified as a person then involved in felonious activity,

5
"The relationship between the distribution of controlled
substances, . . . and the possession and use of dangerous
weapons is now well recognized." Logan v. Commonwealth, 19 Va.
App. 437, 445, 452 S.E.2d 364, 369 (1994) (en banc).

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police properly effected his arrest and undertook the disputed

search.

III.

Defendant next contends that the evidence was insufficient

to prove an intention to distribute the cocaine in his

possession.

The credibility of a witness, the weight accorded testimony,

and the inferences drawn from proven facts are matters to be

determined by the fact finder. See Long v. Commonwealth, 8 Va.

App. 194, 199, 379 S.E.2d 473, 476 (1989). "Circumstantial

evidence may establish the elements of a crime, provided it

excludes every reasonable hypothesis of innocence." Lovelace v.

Commonwealth, 27 Va. App. 575, 586, 500 S.E.2d 267, 272 (1998).

"Whether a hypothesis of innocence is reasonable is a question of

fact and a finding by the trial court is binding on appeal unless

plainly wrong." Id. at 586, 500 S.E.2d at 273 (citation omitted).

"[F]or a defendant to be convicted of possession of a

controlled substance with the intent to distribute, the

Commonwealth must prove that the defendant possessed the

controlled substance contemporaneously with his intention to

distribute that substance." Stanley v. Commonwealth, 12 Va. App.

867, 869, 407 S.E.2d 13, 15 (1991) (en banc). "Because direct

proof of intent [to distribute drugs] is often impossible, it must

be shown by circumstantial evidence." Servis v. Commonwealth, 6

Va. App. 507, 524, 371 S.E.2d 156, 165 (1988). Such evidence may

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include the possession of large sums of money, pagers, and

firearms, "regularly recognized as factors indicating an intent to

distribute." Glasco, 26 Va. App. at 775, 497 S.E.2d at 156.

Officer Lecroy discovered 2.3 grams of cocaine, together with

a pager, $935 "broken down into nine $100 bundles," and a firearm

on defendant's person, an aggregation of circumstances

inconsistent with personal use of the drug. Moreover, defendant

possessed no paraphernalia necessary to the consumption of

cocaine. Although defendant testified that he possessed the drugs

for personal use and attributed the cash to wages, the evidence

proved otherwise, and "[t]he trial court was entitled to

disbelieve [defendant's] explanation and conclude that he lied to

conceal his guilt." Dunbar v. Commonwealth, 29 Va. App. 387, 394,

512 S.E.2d 823, 827 (1999). Such evidence sufficiently

established that defendant possessed the cocaine with the

requisite intent to distribute.

Accordingly, we affirm the convictions.

Affirmed.

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Benton, J., with whom Elder, J., joins in Part I, dissenting.

I.

"[A] police officer may in appropriate circumstances and in

an appropriate manner approach a person for purposes of

investigating possibly criminal behavior even though there is no

probable cause to make an arrest." Terry v. Ohio, 392 U.S. 1,

22 (1968).

The Fourth Amendment, of course, "applies to
all seizures of the person, including
seizures that involve only a brief detention
short of traditional arrest. '[W]henever a
police officer accosts an individual and
restrains his freedom to walk away, he has
"seized" that person,' and the Fourth
Amendment requires that the seizure be
'reasonable.'"

Brown v. Texas, 443 U.S. 47, 50 (1979) (citations omitted).

"The controlling principle here is that an investigative stop,

amounting to a fourth amendment seizure, must be 'supported at

least by a reasonable and articulable suspicion that the person

seized is engaged in criminal activity.'" United States v.

Gooding, 695 F.2d 78, 82 (4th Cir. 1982) (quoting Reid v.

Georgia, 448 U.S. 438, 440 (1980)).

The police officers who seized Ricky Christian had no

reasonable or articulable suspicion that he was engaged in

criminal activity. Indeed, Officer Lecroy gave the following

reason for detaining Christian:

The reason that I did what I did, was
because part of my job that evening was to
prevent anyone from getting hurt, and to

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 apprehend suspects who may have purchased
illegal narcotics.

When we have undercover officers out in
the parking lot which are conducting sales
of illegal drugs, imitation illegal drugs,
my concern is for their safety along with
anyone else that I may be working with if I
-- and any other people who may be in the
area.

When I heard that a man had a gun in the
middle of a high drug area which -- which we
wouldn't have been there if it wasn't a high
drug area, then I'm going to take it from
him and find out what his purpose is for
being there.

The officer testified, however, that Christian did not purchase

any drugs and was not suspected of drug activity. The officer

had no indication that Christian was or had been engaged in

criminal activity. He had no objective basis to believe that

Christian, who was going to his home, "may have purchased

illegal narcotics" from the undercover officers. Moreover, it

is not illegal in Virginia to carry a gun if one is lawfully

permitted to do so and if the gun is not held in a reckless or

threatening manner. See Code § 18.2-56.1 and Code § 18.2-282.

Christian lived in one of the apartments in the building

where he was arrested. Christian did not approach the officers

who were selling the imitation cocaine, and he posed no threat

to them. The evidence merely proved that he entered the

apartment building where he lived. Moreover, no evidence proved

that Christian was going to the laundry room or posed a threat

to the officers who were waiting in the laundry room. Those

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officers were out of sight of persons who may have been using

the apartment's entrance and lobby. Indeed, Officer Lecroy left

the laundry room to confront Christian. A conclusion that

Christian posed a threat to the officers or anyone else would be

based on "sheer speculation, unsupported by the evidence."

Tucker v. Life Ins. Co. of Va., 228 Va. 55, 62, 321 S.E.2d 78,

82-83 (1984).

The only objective facts upon which the police relied to

seize Christian were that he was carrying a weapon in public in

"a high drug area." However, carrying an openly displayed

firearm in public is not illegal in Virginia. Indeed, if a

person desires to transport a firearm from his automobile to his

residence, the firearm must be openly displayed. Cf. Code

§ 18.2-308 (prohibiting generally the carrying of concealed

weapons). The record contains no indication that Christian was

"brandishing" a firearm in violation of Code § 18.2-282(A). In

a state that permits ownership and open display of firearms, the

mere fact that a person may be armed does not provide a reason

to suspect that the person is violating the law.

Moreover, "the characteristic of an area cannot serve to

impute criminal activity to a person by virtue of that person's

presence in the area." Riley v. Commonwealth, 13 Va. App. 494,

498-99, 412 S.E.2d 724, 726 (1992). In Brown, the United States

Supreme Court has also noted that a neighborhood's

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characteristic tells nothing about the conduct of the person in

it.

The flaw in the State's case is that none of
the circumstances preceding the officers'
detention of appellant justified a
reasonable suspicion that he was involved in
criminal conduct. Officer Venegas testified
at appellant's trial that the situation in
the alley "looked suspicious," but he was
unable to point to any facts supporting that
conclusion. There is no indication in the
record that it was unusual for people to be
in the alley. The fact that appellant was
in a neighborhood frequented by drug users,
standing alone, is not a basis for
concluding that appellant himself was
engaged in criminal conduct. In short, the
appellant's activity was no different from
the activity of other pedestrians in that
neighborhood. When pressed, Officer Venegas
acknowledged that the only reason he stopped
appellant was to ascertain his identity.
The record suggests an understandable desire
to assert a police presence; however, that
purpose does not negate Fourth Amendment
guarantees.

Brown, 443 U.S. at 51-52 (footnote omitted); see also Sibron v.

New York, 392 U.S. 40, 62 (1968) (holding that "[t]he inference

that persons who talk to narcotic addicts are engaged in the

criminal traffic in narcotics is simply not the sort of

reasonable inference required to support an intrusion by the

police upon an individual's personal security").

"It cannot be reasonably inferred from the
mere presence of the defendant at the street
intersection and the intersection's
reputation as a place for trafficking in
drugs that [defendant] was engaged in the
illegal activity of drug distribution over
the period of time defendant was observed by
the detectives."

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 * * * * * * *

"[T]housands of citizens live and go
about their legitimate day-to-day activities
in areas which surface . . . in court
testimony, as being high crime
neighborhoods. The fact that the events
here at issue took place at or near an
allegedly 'high narcotics activity' area
does not objectively lend any sinister
connotation of facts that are innocent on
their face."

Riley, 13 Va. App. at 498, 412 S.E.2d at 726-27 (citations

omitted).

The recent case Illinois v. Wardlow, 120 S. Ct. 673 (2000),

reaffirmed the basic principles embodied in Terry and held that

"[h]eadlong flight" in an area known for criminal activity gave

the police reasonable suspicion to search a suspect. 120 S. Ct.

at 676. Nevertheless, the Court also stated that "it was not

merely [the suspect's] presence in an area of heavy narcotics

trafficking that aroused the officers' suspicion." Id. Such

presence, standing alone, is not enough to support a reasonable,

particularized suspicion that the person is committing a crime.

Id. In this case, Christian's presence in a high crime

neighborhood was the only cause for suspicion about his

activities. As stated earlier, his open possession of the

firearm was proof only of lawful compliance with the Virginia

statute. When the circumstances objectively establish perfectly

lawful activity, no cause exists for reasonable suspicion of

criminal activity.

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 To make a Terry stop, "the detaining officers must have a

particularized and objective basis for suspecting the particular

person stopped of criminal activity." United States v. Cortez,

449 U.S. 411, 417-18 (1981). In both Terry and Adams v.

Williams, 407 U.S. 143 (1972), the police officers were able to

articulate a particularized suspicion that the person was

engaged in criminal activity. See Terry, 392 U.S. at 6-7;

Williams, 407 U.S. at 144-48.

The evidence does not prove that Christian was engaged in

criminal activity or was "presently dangerous" to the officers

or any other person. See Terry, 392 U.S. at 24. Thus, Officer

Lecroy was not justified in his "belief that his safety or that

of others was in danger." Id. at 27. For these reasons, I

would hold that the trial judge erred in refusing to suppress

the evidence.

II.

Although the evidence was sufficient to prove possession of

cocaine, it was insufficient to establish an intent to

distribute beyond a reasonable doubt. Therefore, I dissent.

"Possession with intent to distribute is a crime which

requires 'an act coupled with a specific intent.'" Stanley v.

Commonwealth, 12 Va. App. 867, 869, 407 S.E.2d 13, 15 (1991) (en

banc) (citation omitted). "It is elementary that where, as

here, an indictment charges an offense which consists of an act

combined with a particular intent, proof of the intent is

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essential to conviction." Patterson v. Commonwealth, 215 Va.

698, 699, 213 S.E.2d 752, 753 (1975). The Commonwealth must

prove specific intent, an element of the charged offense, beyond

a reasonable doubt. See Jackson v. Virginia, 443 U.S. 307,

315-16 (1979); In re Winship, 397 U.S. 358, 363 (1970). Thus,

"[e]xistence of the intent . . . cannot be based upon surmise or

speculation." Patterson, 215 Va. at 699, 213 S.E.2d at 753.

When the Commonwealth’s evidence is wholly circumstantial,

'all necessary circumstances proved must be consistent with

guilt and inconsistent with innocence and exclude every

reasonable hypothesis of innocence.'" Dukes v. Commonwealth,

227 Va. 119, 122, 313 S.E.2d 382, 383 (1984) (quoting Inge v.

Commonwealth, 217 Va. 360, 366, 228 S.E.2d 563, 567 (1976)).

"Where inferences are relied upon to establish guilt, they must

point to guilt so clearly that any other conclusion would be

inconsistent therewith." Dotson v. Commonwealth, 171 Va. 514,

518, 199 S.E. 471, 473 (1938).

The principle is well established in Virginia that a

relatively small quantity of cocaine warrants the inference that

an accused possessed it for personal use. See Dukes, 227 Va. at

122-23, 313 S.E.2d at 383-84. The police seized only 2.3 grams

of cocaine from Christian's person. No other evidence indicated

an intent to distribute. "The mode of packaging [of the

cocaine] and the way the [package was] hidden are as consistent

with possession for personal use as they are with intent to

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distribute." Id. at 123, 313 S.E.2d at 384. The cocaine was

not divided into individual and separate packages.

Moreover, Christian made no statements and committed no

acts that proved he intended to distribute the cocaine.

Christian had entered the building where he lived when the

officer seized him. The police officer testified that Christian

said he purchased an "eight-ball." The Commonwealth's evidence

established that an eight-ball was approximately 3.5 grams and

that if Christian began with an eight-ball, he was "missing"

only a little over a gram of cocaine. In addition, the

Commonwealth's own expert testified that it would be impossible

to obtain $900 from the sale of a little over a gram of cocaine.

Christian's wife testified that the day Christian was

arrested (October 4, 1996), she had driven him to the bank to

cash his paycheck of "about seven hundred dollars." Christian

testified as follows about his check:

I cashed my check. My check was like, seven
hundred and some dollars. We worked seven
days on -- thirteen days on and four days
off. We worked ten-hour shifts a day. So I
cashed my check. I asked the teller not to
give me any hundred dollar bills and as few
fifties as possible. I arranged my money.

That testimony was not contradicted. The probation officer

testified that Christian reported to him on September 11, that

he had gotten a new job with the railroad company and showed him

a paystub with a "net pay [of] 251.28" for the week ending

"9-7-96."

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 Thus, only through speculation could we conclude that a

connection exists between Christian’s money and his intention

regarding the cocaine. Likewise, proof that Christian possessed

a pager, a very common device in our society, does not establish

any intent regarding the cocaine. "[C]ircumstances of

suspicion, no matter how grave or strong, are not proof of guilt

sufficient to support a verdict of guilty." Clodfelter v.

Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820, 822 (1977).

For these reasons, I would also hold that the evidence

failed to prove beyond a reasonable doubt that Christian

possessed the cocaine with the intent to distribute.

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Elder, J., concurring, in part, and dissenting, in part.

I concur with the majority as to Issue III, sufficiency of

the evidence, and join Judge Benton's dissent as to Issue II,

the seizure of the defendant.

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