Filadelfo Gomez v. Commonwealth

• Court: Court of Appeals of Virginia
• Decided: July 8, 2003
• Docket: 0347024
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Elder, Bumgardner and Kelsey Argued by teleconference

FILADELFO GOMEZ MEMORANDUM OPINION * BY v. Record No. 0347-02-4 JUDGE RUDOLPH BUMGARDNER, III JULY 8, 2003 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Dennis J. Smith, Judge

Crystal A. Meleen (Lopez, Meleen & Sprano, PLC, on brief), for appellant.

Jennifer R. Franklin, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

A jury convicted Filadelfo Gomez of distribution of

cocaine. He contends the trial court erred by not suppressing

statements he made during custodial interrogation. He maintains

the police never had probable cause to arrest him. Finding no

error, we affirm.

We view the evidence and the reasonable inferences

therefrom in the light most favorable to the Commonwealth.

Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d

47, 48 (1991). An undercover detective made three large

purchases of cocaine from Jose Luna. Before each purchase, the

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. detective arranged the purchase with Luna and fixed a time and

place to meet him. Each time, Luna arrived in a gray van owned

and driven by Jose Delcid. Luna would get into the detective's

vehicle, complete the sale, return to the van, and leave in it.

Shortly after leaving the scene of the second sale, the

detective observed the defendant in the van with Luna and

Delcid.

Before the third purchase, the detective arranged to meet

Luna at 8:00 p.m. As he approached the selected meeting spot,

the detective maintained cell phone contact with Luna. Delcid

drove the van into the parking lot and parked. Luna exited,

walked off a short distance, and waited for the detective, who

arrived five minutes later. The detective first drove to the

van and asked the occupants where Luna was. The defendant sat

in the front passenger seat, and Delcid had remained in the

driver's seat. Both men gestured to their left, and the

defendant said something in Spanish about "waiting." The

detective proceeded in the direction they indicated and found

Luna. Luna got into the detective's car and completed the sale.

The detective then signaled for the concealed arrest team to

execute the arrest plan.

Officers blocked the van, removed the occupants, and patted

them down. They handcuffed the defendant and sat him on the

curb. While doing that, the police discovered a bag of cocaine

in the pocket of the front passenger door. After the police - 2 - took the defendant to the police station and informed him of his

Miranda rights in Spanish, he made the statements that he sought

to suppress at trial.

The trial court found the police had probable cause to

believe that the defendant was involved with the drug deal.

"[P]robable cause is a flexible, common-sense standard." Texas

v. Brown, 460 U.S. 730, 742 (1983). An officer is permitted to

make "'common-sense conclusions about human behavior'" in

determining the probability of criminal activity. Id. (quoting

United States v. Cortez, 449 U.S. 411, 418 (1981)). In

ascertaining the existence of probable cause, we "test what the

totality of circumstances meant" to trained police officers.

Hollis v. Commonwealth, 216 Va. 874, 877, 223 S.E.2d 887, 889

(1976).

The van transported Luna and the drugs to each transaction.

"[P]olice may search an automobile . . . [in which] they have

probable cause to believe contraband or evidence is contained."

California v. Acevedo, 500 U.S. 565, 580 (1991). After Luna

completed the drug sale, the police had probable cause to arrest

him and to search the van for contraband. "[A]n officer may

search an automobile incident to an arrest, even if the officer

has not initiated contact while the arrestee was still in the

automobile." United States v. Thornton, 325 F.3d 189, 194 (4th

Cir. 2003).

- 3 - The officers were entitled to maintain the status quo by

temporarily detaining the van's occupants and patting them down

for weapons. United States v. Sakyi, 160 F.3d 164, 169 (4th

Cir. 1998) (police may remove and pat-down occupants of lawfully

stopped vehicle when they have reasonable suspicion it contains

drugs). See also Maryland v. Wilson, 519 U.S. 408, 415 (1997)

(officer may order passenger out of lawfully stopped vehicle).

The defendant concedes the police could remove him from the van.

As the police removed the defendant from the van, they saw

cocaine in the door pocket beside the defendant's seat. At that

point, the officers had probable cause to arrest the defendant

for participating in the drug deal. The defendant was in the

van with Luna and Delcid shortly after the second drug sale. On

the last occasion, he sat in the front passenger seat while Luna

talked on his cell phone and directed the detective to the

meeting place. The defendant directed the detective toward Luna

and indicated Luna was waiting. The defendant sat inches from a

supply of cocaine. Based on the totality of circumstances, the

trial court could find that the officers had probable cause to

arrest the defendant. Accordingly, we affirm the conviction.

Affirmed.

- 4 -