COURT OF APPEALS OF VIRGINIA
Present: Judges Russell, Malveaux and Senior Judge Clements Argued at Richmond, Virginia UNPUBLISHED
DOUGLAS LEON JONES MEMORANDUM OPINION* BY v. Record No. 0382-18-2 JUDGE JEAN HARRISON CLEMENTS APRIL 23, 2019 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY Gary A. Hicks, Judge
John B. Mann for appellant.
Rosemary V. Bourne, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Appellant, Douglas L. Jones, entered conditional guilty pleas to charges of possession of
ammunition after having been convicted of a felony and possession of heroin.1 He argues on
appeal that the trial court erred in denying his motion to suppress evidence obtained by police
officers following a traffic stop. We hold that under existing case law, the evidence should have
been suppressed.
BACKGROUND
On June 8, 2017, Officer Stephens of the Henrico County Police Department stopped
appellant’s car in a “high drug area” for a suspected window tint violation. Upon checking the
license plate number, the officer learned that there was possibly a warrant for appellant’s arrest.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 The sentencing order does not reflect that appellant entered conditional guilty pleas, but the transcript of the plea hearing on February 15, 2018, shows that conditional pleas were entered. On remand, the trial court should correct this clerical error. See Code § 8.01-428(B). Stephens ordered appellant out of the car and handcuffed him. When appellant opened his car
door, Stephens saw in plain view folded lottery tickets in the door pocket consistent with drug
packaging. Stephens testified at the suppression hearing that in the previous few years “well
over fifty percent of the time, heroin packaged for sale or use is packaged in folded lottery tickets
of some kind.” 2
After Stephens determined that the warrant was not active, he removed appellant’s
handcuffs. The officer then removed a folded lottery ticket from the door compartment,
unfolded it, and determined that it did not contain any drugs. He removed a second ticket from
the door, opened it, and “could see tan powder residue [he knew] to be consistent with heroin.”
Stephens asked appellant if there were more drugs in the car. Although appellant denied having
more drugs in the car, Stephens found a folded lottery ticket in the car’s center console when he
searched the car. That ticket contained a tan powder that Stephens believed was heroin.
Officer Gilroy also was present during the traffic stop. After Stephens found the residue
in the ticket in the door, Gilroy placed appellant back in handcuffs and advised him of his rights
pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). After Stephens found the heroin and a cut
straw in the center console, appellant admitted that he used the straw to ingest heroin. Appellant
also admitted that the police might find more drugs in his house and signed a consent waiver
allowing a search. The police found ammunition in appellant’s residence.
ANALYSIS
The denial of a motion to suppress evidence is reviewed on appeal in the light most
favorable to the Commonwealth with the benefit of all reasonable inferences fairly deducible
2 Officer Lafollette responded to the scene to check the window tint of appellant’s car. He also saw the folded lottery tickets in the door panel. He testified at the suppression hearing as an expert in drug packaging that heroin was “commonly packaged” in folded lottery tickets and that ninety-five percent of the folded tickets with which he had come in contact had held heroin. -2- from that evidence accorded to the Commonwealth. See Sidney v. Commonwealth, 280 Va.
517, 520 (2010). The appellant must show that the denial of the suppression motion was
reversible error. Id. at 522. The appellate court is bound by the circuit court’s findings of fact
unless “plainly wrong or without evidence to support them.” Gregory v. Commonwealth, 64
Va. App. 87, 93 (2014). This Court gives deference to the trial court’s findings of fact, but
reviews de novo the trial court’s application of the law to the particular facts of the case. Glenn
v. Commonwealth, 275 Va. 123, 130 (2008).
Probable cause is a flexible, common-sense standard, requiring only a probability of
criminal activity. See Harmon v. Commonwealth, 15 Va. App. 440, 444 (1992) (“[a]ctual proof
that criminal activity is afoot is not necessary; the record need only show that it may be afoot”);
see also District of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018) (“Probable cause ‘is not a
high bar.’” (quoting Kaley v. United States, 134 S. Ct. 1090, 1103 (2014))). Therefore, “[u]nlike
a factfinder at trial, ‘reasonable law officers need not resolve every doubt about a suspect’s guilt
before probable cause is established.’” Joyce v. Commonwealth, 56 Va. App. 646, 660 (2010)
(quoting Slayton v. Commonwealth, 41 Va. App. 101, 107 (2003)). Whether probable cause
exists is determined by examining the “totality-of-the-circumstances.” Illinois v. Gates, 462 U.S.
213, 238 (1983).
Appellant argues that the initial search of the lottery tickets in the car door was unlawful
and that all evidence stemming from that search should have been suppressed. We agree. Under
existing precedent of both our Supreme Court and this Court, a police officer may seize and
search an item only if its “incriminating character” is “immediately apparent.” The record here
does not establish that fact.
In Grandison v. Commonwealth, 274 Va. 316 (2007), an officer conducted a pat-down
search of Grandison following a traffic stop of a vehicle that had been reported stolen. Id. at
-3- 318. The officer observed “a folded dollar bill protruding from Grandison’s watch pocket.” Id.
at 321. The officer recognized the fold as an “apothecary fold” and removed the dollar bill
because, based on his training and experience, he knew that drugs were frequently packaged in
such a manner. Id. at 319. The officer found cocaine inside the dollar bill, and Grandison was
convicted of possession of cocaine. Id. at 318-19. However, the Supreme Court of Virginia
reversed his conviction because the dollar bill was an object with a legitimate purpose and “[n]o
other circumstances indicated criminal activity.” Id. at 321. The Court concluded that the
officer lacked probable cause to remove the dollar bill from Grandison’s pocket. Id.
The Supreme Court reached a similar conclusion in Cost v. Commonwealth, 275 Va. 246
(2008). In Cost, a police officer felt “numerous capsules” in Cost’s pants pocket during a
pat-down search, which he removed because he “knew,” based on his training and experience,
that they contained heroin. Id. at 249-50. Reversing the conviction, the Court determined that
“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” because legal medications such as
Motrin and Tylenol are frequently packaged in capsule form. Id. at 253-54.
In Cauls v. Commonwealth, 55 Va. App. 90 (2009), a police officer saw “the knotted and
frayed end of a plastic baggy protruding from the watch pocket” of Cauls’ pants and removed the
baggy. Id. at 95.
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COURT OF APPEALS OF VIRGINIA
Present: Judges Russell, Malveaux and Senior Judge Clements Argued at Richmond, Virginia UNPUBLISHED
DOUGLAS LEON JONES MEMORANDUM OPINION* BY v. Record No. 0382-18-2 JUDGE JEAN HARRISON CLEMENTS APRIL 23, 2019 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF HENRICO COUNTY Gary A. Hicks, Judge
John B. Mann for appellant.
Rosemary V. Bourne, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.
Appellant, Douglas L. Jones, entered conditional guilty pleas to charges of possession of
ammunition after having been convicted of a felony and possession of heroin.1 He argues on
appeal that the trial court erred in denying his motion to suppress evidence obtained by police
officers following a traffic stop. We hold that under existing case law, the evidence should have
been suppressed.
BACKGROUND
On June 8, 2017, Officer Stephens of the Henrico County Police Department stopped
appellant’s car in a “high drug area” for a suspected window tint violation. Upon checking the
license plate number, the officer learned that there was possibly a warrant for appellant’s arrest.
* Pursuant to Code § 17.1-413, this opinion is not designated for publication. 1 The sentencing order does not reflect that appellant entered conditional guilty pleas, but the transcript of the plea hearing on February 15, 2018, shows that conditional pleas were entered. On remand, the trial court should correct this clerical error. See Code § 8.01-428(B). Stephens ordered appellant out of the car and handcuffed him. When appellant opened his car
door, Stephens saw in plain view folded lottery tickets in the door pocket consistent with drug
packaging. Stephens testified at the suppression hearing that in the previous few years “well
over fifty percent of the time, heroin packaged for sale or use is packaged in folded lottery tickets
of some kind.” 2
After Stephens determined that the warrant was not active, he removed appellant’s
handcuffs. The officer then removed a folded lottery ticket from the door compartment,
unfolded it, and determined that it did not contain any drugs. He removed a second ticket from
the door, opened it, and “could see tan powder residue [he knew] to be consistent with heroin.”
Stephens asked appellant if there were more drugs in the car. Although appellant denied having
more drugs in the car, Stephens found a folded lottery ticket in the car’s center console when he
searched the car. That ticket contained a tan powder that Stephens believed was heroin.
Officer Gilroy also was present during the traffic stop. After Stephens found the residue
in the ticket in the door, Gilroy placed appellant back in handcuffs and advised him of his rights
pursuant to Miranda v. Arizona, 384 U.S. 436 (1966). After Stephens found the heroin and a cut
straw in the center console, appellant admitted that he used the straw to ingest heroin. Appellant
also admitted that the police might find more drugs in his house and signed a consent waiver
allowing a search. The police found ammunition in appellant’s residence.
ANALYSIS
The denial of a motion to suppress evidence is reviewed on appeal in the light most
favorable to the Commonwealth with the benefit of all reasonable inferences fairly deducible
2 Officer Lafollette responded to the scene to check the window tint of appellant’s car. He also saw the folded lottery tickets in the door panel. He testified at the suppression hearing as an expert in drug packaging that heroin was “commonly packaged” in folded lottery tickets and that ninety-five percent of the folded tickets with which he had come in contact had held heroin. -2- from that evidence accorded to the Commonwealth. See Sidney v. Commonwealth, 280 Va.
517, 520 (2010). The appellant must show that the denial of the suppression motion was
reversible error. Id. at 522. The appellate court is bound by the circuit court’s findings of fact
unless “plainly wrong or without evidence to support them.” Gregory v. Commonwealth, 64
Va. App. 87, 93 (2014). This Court gives deference to the trial court’s findings of fact, but
reviews de novo the trial court’s application of the law to the particular facts of the case. Glenn
v. Commonwealth, 275 Va. 123, 130 (2008).
Probable cause is a flexible, common-sense standard, requiring only a probability of
criminal activity. See Harmon v. Commonwealth, 15 Va. App. 440, 444 (1992) (“[a]ctual proof
that criminal activity is afoot is not necessary; the record need only show that it may be afoot”);
see also District of Columbia v. Wesby, 138 S. Ct. 577, 586 (2018) (“Probable cause ‘is not a
high bar.’” (quoting Kaley v. United States, 134 S. Ct. 1090, 1103 (2014))). Therefore, “[u]nlike
a factfinder at trial, ‘reasonable law officers need not resolve every doubt about a suspect’s guilt
before probable cause is established.’” Joyce v. Commonwealth, 56 Va. App. 646, 660 (2010)
(quoting Slayton v. Commonwealth, 41 Va. App. 101, 107 (2003)). Whether probable cause
exists is determined by examining the “totality-of-the-circumstances.” Illinois v. Gates, 462 U.S.
213, 238 (1983).
Appellant argues that the initial search of the lottery tickets in the car door was unlawful
and that all evidence stemming from that search should have been suppressed. We agree. Under
existing precedent of both our Supreme Court and this Court, a police officer may seize and
search an item only if its “incriminating character” is “immediately apparent.” The record here
does not establish that fact.
In Grandison v. Commonwealth, 274 Va. 316 (2007), an officer conducted a pat-down
search of Grandison following a traffic stop of a vehicle that had been reported stolen. Id. at
-3- 318. The officer observed “a folded dollar bill protruding from Grandison’s watch pocket.” Id.
at 321. The officer recognized the fold as an “apothecary fold” and removed the dollar bill
because, based on his training and experience, he knew that drugs were frequently packaged in
such a manner. Id. at 319. The officer found cocaine inside the dollar bill, and Grandison was
convicted of possession of cocaine. Id. at 318-19. However, the Supreme Court of Virginia
reversed his conviction because the dollar bill was an object with a legitimate purpose and “[n]o
other circumstances indicated criminal activity.” Id. at 321. The Court concluded that the
officer lacked probable cause to remove the dollar bill from Grandison’s pocket. Id.
The Supreme Court reached a similar conclusion in Cost v. Commonwealth, 275 Va. 246
(2008). In Cost, a police officer felt “numerous capsules” in Cost’s pants pocket during a
pat-down search, which he removed because he “knew,” based on his training and experience,
that they contained heroin. Id. at 249-50. Reversing the conviction, the Court determined that
“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” because legal medications such as
Motrin and Tylenol are frequently packaged in capsule form. Id. at 253-54.
In Cauls v. Commonwealth, 55 Va. App. 90 (2009), a police officer saw “the knotted and
frayed end of a plastic baggy protruding from the watch pocket” of Cauls’ pants and removed the
baggy. Id. at 95. Following the holdings of Grandison and Cost, this Court reversed the
conviction for possession of cocaine because “plastic baggies are often used for legitimate
purposes that do not involve the packaging of narcotics” and the officer’s “observation of the
plastic knot and fray, standing alone, could not provide him with probable cause because the
object’s incriminating character was not immediately apparent.” Id. at 101-02.
The facts in this case raise a similar concern as in Grandison, Cost, and Cauls. Lottery
tickets have a legitimate purpose. The incriminating nature of the folded tickets that Officer
-4- Stephens saw in appellant’s car was not immediately apparent to him. Accordingly, we hold that
the trial court erred in denying the motion to suppress the evidence found in appellant’s car.
Further, we conclude that the statements appellant made to the officers and the additional
evidence found at his house also should have been suppressed. This evidence is not attenuated
from the primary taint associated with the evidence initially found in appellant’s car. See Wong
Sun v. United States, 371 U.S. 471, 487-88 (1963).
CONCLUSION
We hold that the presence of folded lottery tickets in appellant’s car did not give Officer
Stephens probable cause to seize and search the tickets and, thus, the trial court erred in denying
appellant’s motion to suppress evidence. We reverse appellant’s convictions and remand the
case.
Reversed and remanded.
-5-