A Rehearing En Banc was granted in this case on August 14, 1995.
COURT OF APPEALS OF VIRGINIA
Present: Judges Coleman, Elder and Senior Judge Cole Argued at Richmond, Virginia
HERBERT LEE EVANS MEMORANDUM OPINION * BY v. Record No. 0577-94-2 JUDGE LARRY G. ELDER JUNE 27, 1995 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Thomas N. Nance, Judge
David R. Lett for appellant.
Robert B. Condon, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Herbert Lee Evans (appellant) appeals his conviction for
possession of cocaine. Appellant's sole contention is that the
cocaine seized by the police should have been suppressed because
the officer seized it in violation of appellant's fourth
amendment rights. Upon review, we hold that the trial court
erred in ruling that the search and seizure were lawful and in
admitting the illegally seized cocaine into evidence. Because
the cocaine evidence was indispensable to prove the
Commonwealth's case, we reverse the conviction and dismiss the
indictment.
On the night of October 20, 1993, while patrolling a high
* Pursuant to Code § 17-116.010 this opinion is not designated for publication. drug area of Richmond, Officer Michael Talbert observed appellant
standing in the middle of the street with another individual.
Appellant and the person made a hand-to-hand exchange, but
Talbert could not see what had been exchanged. Appellant
appeared to notice the police car coming towards him, and he
immediately approached a vehicle that was parked with its engine
running. Appellant, who had a small black leather pouch in his
left hand and a pager in his right hand, placed his left hand
inside the open window of the vehicle. When appellant removed
his hand, he was no longer holding the pouch. Appellant
transferred the pager from his right hand to his left hand. Talbert testified that, based upon his experience and
training in narcotics detection and his observation of all of the
circumstances, he believed appellant had engaged in a drug
transaction. Talbert approached the vehicle, shined his
flashlight inside, saw a pouch, reached inside, and retrieved the
pouch from the floorboard behind the driver's seat. Talbert
could not see inside the pouch without picking it up. When he
shined his flashlight into the pouch, Talbert saw that it
contained bags of a substance that he suspected was cocaine.
Talbert arrested appellant for possession of cocaine. When the
police searched the vehicle incident to appellant's arrest, they
found in the trunk crack cocaine hidden inside a candy container
in a leather jacket.
At a bench trial, appellant was convicted of possession of
-2- cocaine.
In determining whether Talbert had probable cause to seize
the pouch without a warrant, we are guided by certain principles.
The test of the constitutional validity of a warrantless search
"'is whether at the moment of arrest the arresting officer had
knowledge of sufficient facts and circumstances to warrant a
reasonable man in believing that an offense has been committed.'"
Hardy v. Commonwealth, 11 Va. App. 433, 434, 399 S.E.2d 27, 28
(1990) (quoting DePriest v. Commonwealth, 4 Va. App. 577, 583-84, 359 S.E.2d 540, 543 (1987), cert. denied, 488 U.S. 985 (1988)).
Furthermore, although we are required to "test what the totality
of the circumstances meant to police officers trained in
analyzing the observed conduct for purposes of crime control," we
must consider that "the probable-cause determination must be
based on objective facts that could justify the issuance of a
warrant by a magistrate." Buck v. Commonwealth, 20 Va. App. 298,
__, 456 S.E.2d 534, __ (1995) (quoting Derr v. Commonwealth, 6
Va. App. 215, 219-20, 368 S.E.2d 916, 918 (1988)) (other
citations omitted). See also DePriest, 4 Va. App. at 584, 359
S.E.2d at 543 ("[I]n assessing an officer's probable cause for
making a warrantless arrest [or seizure and search], no less
strict standards may be applied than are applicable to a
magistrate's determination that [a] . . . warrant should issue.")
(citing Washington v. Commonwealth, 219 Va. 857, 862, 252 S.E.2d
326, 329 (1979)).
-3- The Commonwealth claims that Talbert had probable cause to
seize the pouch and search its contents because (1) he observed
hand-to-hand contact between appellant and a third party; (2) the
exchange occurred in a high drug area; (3) appellant and the
third party quickly parted after seeing the police; (4) appellant
placed the pouch in a vehicle and distanced himself from the
vehicle; (5) appellant possessed a pager; and (6) Talbert's
experience and training in narcotics detection allowed him to
conclude he witnessed a drug transaction. A complete review of the record shows that "[a]t most, the
facts raised a suspicion that criminal activity was afoot; the
facts did not provide [Talbert] with probable cause to believe
that the appellant had or was committing a crime." Buck, 20 Va.
App. at __, 456 S.E.2d at __ (quoting DePriest, 4 Va. App. at
584-85, 359 S.E.2d at 544). The behavior Talbert observed could
have been equally indicative of lawful activity, especially in
light of the fact that he did not see what was being exchanged by
the parties.
This Court held in DePriest that the arresting officer's observations did not establish probable cause to arrest the
appellant for selling narcotics. In DePriest, the officer
observed the appellant over a three and a half hour period
engaging in hand-to-hand contact with multiple people and
exchanging money and other objects with multiple people. We held
that "while the events observed by [the officer] were suspicious
-4- they did not alone, establish probable cause," but a mere
reasonable suspicion of criminal activity. DePriest, 4 Va. App.
at 584-85, 359 S.E.2d at 543-44. We also reiterated that "'a
sequence of events which is typical of a common form of narcotics
transaction may create a suspicion in a police officer's mind,
but probable cause, of course, requires more than mere
suspicion.'" DePriest, 4 Va. App at 585, 359 S.E.2d at 543-44
(quoting United States v. Green, 670 F.2d 1148, 1151 (D.C. Cir.
1981)) (emphasis added). Other decisions from this Court are instructive in reaching
our conclusion. In Smith v. Commonwealth, 12 Va. App. 1100, 407
S.E.2d 49 (1991), the arresting officer saw the appellant at
night in a playground in a drug area and saw him quickly move to
put his hand into his pants when the officer's marked car came
into view. However, the officer observed no other behavior that
would have indicated that the appellant was involved in criminal
activity. This Court held that these facts did not provide
sufficient cause to even detain the appellant for an
investigatory stop, which requires a mere reasonable, articulable
suspicion of criminal activity (a more lenient standard than
probable cause).
In Commonwealth v. Grimstead, 12 Va. App. 1066, 407 S.E.2d 47 (1991), the arresting officer stopped the appellant's car in
the early morning hours for speeding and saw a hemostat in the
vehicle's ashtray. The officer removed the hemostat to examine
-5- it, observed what he thought were traces of marijuana, and
arrested the appellant. We held that on this evidence, "the
officer did not have probable cause to seize the hemostat as
evidence of a crime . . ." as the hemostat's presence could only
have justified a suspicion of criminality. 12 Va. App. at 1070,
407 S.E.2d at 49.
As the dissent recognizes, this case offers some indicia
that appellant possessed cocaine. However, "[a]t most, the facts
raised a suspicion that criminal activity was afoot; the facts
did not provide [Talbert] with probable cause to believe that the
appellant had or was committing a crime." Buck, 20 Va. App. at
__, 456 S.E.2d at __. Consequently Talbert lacked probable cause
to seize and search the pouch or arrest appellant. This case is
unlike Commonwealth v. Ramey, 19 Va. App. 300, 450 S.E.2d 775
(1994), where the arresting officer viewed a plastic bottle
resembling a "bong" partially protruding from the pack the
appellant wore at his waist. While issuing a traffic summons to
the driver of the vehicle in which the appellant was a passenger,
the officer seized the device and arrested the appellant for
possession of cocaine. We held that "[b]ecause of the
distinctive character of the plastic bottle with foil on top and
the highly unlikely event that it would have a legitimate use,
the officer had probable cause to believe that the 'homemade
bong'" might be useful as evidence of a crime. Id. at 305, 450
S.E.2d at 777.
-6- Accordingly, the seizure of the pouch and its subsequent
search were illegal. We therefore reverse the conviction and
dismiss the indictment.
Reversed and dismissed.
-7- Cole, S. J., dissenting.
I respectfully disagree with the majority's decision to
suppress the evidence of cocaine. I agree with the trial court
that the police officers had probable cause to seize it.
In reviewing a trial court's denial of a motion to suppress,
"the burden is upon [the appellant] to show that this ruling,
when the evidence is considered most favorably to the
Commonwealth, constituted reversible error." Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert.
denied, 449 U.S. 1017 (1980).
The only issue in this case is whether the police officers
had probable cause to seize from the appellant's car a black
leather pouch containing cocaine. Admittedly, it is difficult to
define probable cause. Professor Bacigal has described probable
cause in this manner: The law is clear as to what is not probable cause. It is not proof beyond a reasonable doubt; it is not a prima facie showing; it is not bare suspicion. The law is less clear as to what is probable cause. As the name implies, probable cause deals with probabilities, but the courts have not held that it means more probable than not. . . .
The courts recognize that probable cause
involves the factual and practical
considerations of everyday life. Probable
cause is established when the totality of the
circumstances warrant a person of reasonable
caution in the belief that seizable items are
-8- located in the area to be searched. The
required degree of probability is therefore
expressed as a "reasonable belief" and not in
terms of any mathematical precision. The
distinction between "reasonable belief" and
"bare suspicion" remains elusive and can only
be determined by focusing on the precise
facts of individual cases. Ronald J. Bacigal, Virginia Criminal Procedure § 4-7 (3d ed.
1994). See also Brinegar v. United States, 338 U.S. 160 (1949);
Saunders v. Commonwealth, 218 Va. 294, 237 S.E.2d 150 (1977).
The United States Supreme Court has frequently
remarked that probable cause is a flexible,
common-sense standard. It merely requires
that the facts available to the officer would
"warrant a man of reasonable caution in the
belief" that certain items may be contraband
or stolen property or useful as evidence of a
crime; it does not demand any showing that
such a belief be correct or more likely true
than false. A "practical, nontechnical"
probability that incriminating evidence is
involved is all that is required.
Texas v. Brown, 460 U.S. 730, 742 (1983) (citations omitted). Accord Delong v. Commonwealth, 234 Va. 357, 366, 362 S.E.2d 669,
-9- 673 (1987), cert. denied, 485 U.S. 929 (1988) (using identical
language to define probable cause).
I shall focus upon the facts and circumstances of this
particular case to determine whether the police officer at the
time he made the decision to seize the pouch had probable cause
to believe that contraband was located in the area to be
searched. The only witness to the facts was Michael R. Talbert
of the Richmond Police Department. He is a veteran police
officer with eight years of experience, six and half of which
were spent investigating narcotics crimes. He had received
classes in narcotics and surveillance techniques. He had
performed well over two hundred surveillances and was the primary
arresting officer of over five hundred persons on narcotics
offenses. He had been involved with investigating both selling
and buying drugs on the streets. On the night in question Talbert and two other officers were
on patrol in a "high drug area." Talbert himself had made a
number of arrests in the area on previous occasions. As he
turned onto Walcott Place, he observed the appellant and another
individual standing in the middle of the street having hand-to-
hand contact. He testified that what he observed was more than a
handshake and that something had been exchanged, but he did not
know what it was. Talbert stated that if this was all he
observed, he would not have stopped his vehicle.
In addition, he observed that when the police car turned the
-10- corner, the defendant and the other individual turned and looked
in their direction. Immediately, the two men split up. The
other individual went to Talbert's left and appellant went in the
opposite direction towards a vehicle that was parked on the
street.
Talbert observed that appellant had a pager in his right
hand and a black leather pouch in his left hand. Talbert
explained that a pager is typically used in drug transactions. Appellant walked towards the parked car. Talbert noticed
that the car's motor was running and the driver's window was
down. As appellant walked beside the car on the street side, the
following events occurred according to Talbert's testimony: [Appellant] slipped his left hand into the car. When he pulled it back out, he was no longer holding the black pouch that he originally had been holding. At that time, he put his hands down in front of him, and then he kind of discretely changed the pager from right hand to his left hand. About this time, he was at the back of the car . . . .
At this point the officer stopped his vehicle and walked to
the place where the pouch had disappeared. He shined his
flashlight into the car and observed the black pouch laying on
the floor in the back seat behind the driver's seat. Talbert
testified that all of these facts and circumstances together led
him to the conclusion that he had observed a drug transaction.
He stated that "the actions of [appellant] were typical of what I
have seen, not only from being in a police vehicle and pulling up
on people, but from surveillances, observing throwdowns."
-11- Talbert reached into the car, seized the pouch, and observed
that it contained rock-like substances in clear plastic baggies.
Further observation revealed that the pouch contained seven
baggies with a rock of cocaine valued at fifty dollars in each
bag. Appellant was placed under arrest for possession of cocaine
with intent to distribute. Additional cocaine was found in the
trunk of the vehicle in a coat belonging to appellant.
The trial court denied the motion to suppress the drug
evidence for the following reason: Well, the officer articulated very well . . . . But his indication was the hand-to- hand contact; the high drug area; the splitting of the two men, going in opposite directions; your client, obviously, getting rid of what he had in his hand; the pager. I think he had the right to go to the vehicle and get the pouch. Once he looks in the pouch, if he can legally look in that pouch, then, of course, he can legally go in the trunk.
Although none of these factors is sufficient by itself to
constitute probable cause, it is their combination under the
particular circumstances confronting Talbert that is the proper
subject of our consideration. Probable cause exists if the
totality of the circumstances, as viewed by a reasonable and
prudent police officer in light of his training and experience,
would lead a man of reasonable caution to believe that the item
to be seized may be contraband or useful as evidence of a crime.
Such belief need not be correct or more likely true than false.
The majority states that the behavior observed by Talbert
-12- could have been equally indicative of lawful activity, especially
in light of the fact that he did not see what was being exchanged
by the parties. Given this set of circumstances and the order in
which they occurred, Talbert concluded that Evans had engaged in
or was engaged in criminal activity. I cannot perceive any
innocent explanation for the sequence of the appellant's
behavior, and he did not suggest any in the trial court or in
this Court. In taking this position, the majority has abandoned the
standard of "reasonable belief" and requires the Commonwealth to
prove a "prima facie" case. If the Commonwealth is required to
directly prove the presence of cocaine, we are no longer dealing
with probabilities but with a higher standard than the law
requires. The Supreme Court has put this issue to rest. In
Illinois v. Gates, 462 U.S. 213 (1983), the Court said: [P]robable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity. By hypothesis, therefore, innocent behavior frequently will provide the basis for a showing of probable cause; to require otherwise would be to sub silentio impose a drastically more rigorous definition of probable cause than the security of our citizens demands. We think the Illinois court attempted a too rigid classification of the types of conduct that may be relied upon in seeking to demonstrate probable cause. . . . In making a determination of probable cause the relevant inquiry is not whether particular conduct is "innocent" or "guilty", but the degree of suspicion that attaches to particular types of noncriminal acts.
462 U.S. at 243-44, n.13. See also United States v. Sokolow, 490
-13- U.S. 1, 8 (1989).
This Court's decision in DePriest v. Commonwealth, 4 Va.
App. 577, 359 S.E.2d 540 (1987), cert. denied, 488 U.S. 985
(1988), cited in the majority opinion in support of their
position, in fact supports my point of view in this case. The
only evidence presented by the Commonwealth in DePriest was that
an experienced police officer was conducting a surveillance. He
observed several persons approach DePriest and a companion and
give them money. One of them would leave and, in about five
minutes, return and give something to the person. The officer
could not identify the item exchanged for money. According to
the officer, he arrested DePriest "'based upon my observation of
Mr. Toney and Mr. DePriest for the three and a half hour period,
and then based upon the contraband found on Mr. Toney and based
upon the currency that I had observed Mr. Toney give Mr. DePriest
after what I suspected to be drug transactions, and based on my
experience.'" Id. at 581-82, 359 S.E.2d at 542.
In rejecting the Commonwealth's argument in DePriest, this Court stated that the events witnessed by the officer provided
him with a mere suspicion of criminal activity but not probable
cause. The Court explained the rationale behind its decision as
follows: It is relevant in this regard that [the officer] did not observe suspected narcotics change hands, nor did he observe the exchange of any object which in his experience suggested narcotics. Further, there was no evidence that the area under surveillance was noted for [drug] transactions, or that the
-14- transactions observed were furtive in nature. In summary, while the events observed by Detective Carter were suspicious they did not, alone, establish probable cause.
4 Va. App. at 585, 359 S.E.2d at 544.
All of these factors, noted as missing in DePriest, are
present in this case, but have not been mentioned in the majority
opinion.
The majority cites Smith v. Commonwealth, 12 Va. App. 1100,
407 S.E.2d 49 (1991), and Commonwealth v. Grimstead, 12 Va. App.
1066, 407 S.E.2d 47 (1991), as authority for its position. I
disagree because the totality of the circumstances in each of
these cases is clearly distinguishable. In Smith, we pointed out some of the factors to be
considered in examining the circumstances necessary to show
criminal activity. We said we may consider "'the
"characteristics of the area" where the stop occurs, the time of
the stop, whether late at night or not, as well as any suspicious
conduct of the person accosted such as an obvious attempt to
avoid officers or any nervous conduct on the discovery of their
presence.'" Id. at 1103, 407 S.E.2d at 51-52 (citations
omitted). As stated by the majority, the only evidence present
in the Smith case was that the arresting officer saw the [accused] at night in a playground in a drug area and saw him quickly move to put his hand into his pants when the officer's marked car came into view. However, the officer observed no other behavior that would have indicated that the appellant was involved in criminal activity.
-15- The facts here are clearly distinguishable from that case.
In Grimstead, the police officer stopped the defendant for
speeding. He observed in open view a hemostat in the ashtray.
He removed Grimstead from the car. He testified that in his mind
"he needed to make an observation as to whether or not they had
been used as any illegal use, anything other than their intended
use; and to do so, I needed to examine them." Id. at 1068, 407
S.E.2d at 48. This testimony showed that the officer did not
believe he had probable cause to seize the item. The officer
seized the hemostat and observed marijuana residue on the tips of
the hemostat. Based upon those facts, this Court held that the
evidence of a crime. Again, this case is clearly distinguishable
upon the facts. A case factually more analogous to this case is United
States v. Green, 670 F.2d 1148 (D.C. Cir. 1981). In Green, an
experienced police officer in an area known for drug activity
observed two (other) persons engaged in a transaction of a type
common to drug peddling. The officer noticed that the parties
attempted to conceal the exchanged object. The defendant, when
he noticed the police approaching, turned and rapidly walked away
and made a motion as if to dispose of the object he was carrying.
The trial court found that the totality of circumstances
presented was sufficient to establish probable cause. It relied
upon these factors: (1) the sequence of events between the
-16- parties which was typical of a two-party narcotic transaction;
(2) the movement of the three persons' cupped hands and Green's
subsequent stuffing of the protruding paper bag back into his
coat pocket, suggesting an attempt to conceal the object; and (3)
the appearance of flight and evasion when pursued by the officer.
Based upon the combination of these factors, the circuit court
held the evidence sufficient to constitute probable cause.
Based upon the foregoing facts and case law analyses, I find
that the evidence is sufficient to establish probable cause for
Officer Talbert to seize the black leather pouch. Accordingly, I
cannot find that the trial court was plainly wrong or that its
decision was without credible evidence to support it in refusing
to suppress the drug evidence. I would affirm the decision of
the trial court.
-17-