Herman Lee Jones, Jr. v. Commonwealth of Virginia

• Court: Court of Appeals of Virginia
• Decided: June 18, 2002
• Docket: 1586012
• Status: Unpublished

Opinion

COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Bray and Humphreys Argued by teleconference

HERMAN LEE JONES, JR. MEMORANDUM OPINION * BY v. Record No. 1586-01-2 JUDGE RICHARD S. BRAY JUNE 18, 2002 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Learned D. Barry, Judge

Gregory W. Franklin, Assistant Public Defender, for appellant.

Marla Graff Decker, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Herman Lee Jones, Jr. (defendant) was convicted in a bench

trial for possession of heroin in violation of Code § 18.2-250.

On appeal, he complains the trial court erroneously denied his

motion to suppress the offending drugs. We disagree and affirm

the conviction.

The parties are fully conversant with the record, and this

memorandum opinion recites only those facts necessary to a

disposition of the appeal.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. I.

In reviewing a trial court's ruling on a suppression motion,

we consider the evidence in the light most favorable to the

prevailing party below, the Commonwealth in this instance,

granting to it all reasonable inferences fairly deducible

therefrom. Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407

S.E.2d 47, 48 (1991).

"Ultimate questions of reasonable suspicion and probable cause to make a warrantless search" involve questions of both law and fact and are reviewed de novo on appeal. In 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, 197-98, 487 S.E.2d 259,

261 (1997) (en banc) (quoting Ornelas v. United States, 517 U.S.

690, 691, 699 (1996)). "On appeal, it is the defendant's burden

to show 'that the denial of [the] motion to suppress constitute[d]

reversible error.'" Moss v. Commonwealth, 30 Va. App. 219, 223,

516 S.E.2d 246, 248 (1999) (citation omitted). "Our review of the

record includes evidence adduced at both the trial and the

suppression hearing." Greene v. Commonwealth, 17 Va. App. 606,

608, 440 S.E.2d 138, 139 (1994).

Viewed accordingly, the instant record discloses that, on

January 8, 2001, Richmond Police Officer Thomas L. Gilbert, while

on routine patrol in a "high drug area" at approximately

- 2 - 9:00 a.m., observed defendant walking "down the middle of [a]

street" lined with "sidewalks on both sides." 1 As defendant

"pas[sed] [the] police vehicle," Gilbert noticed "a silver foil

package" "in his left hand," which was "loosely cupped so . . .

[Gilbert] could see the object inside of it." Based on his

"training and experience," including "over a hundred" drug-related

arrests, "probably twenty-five arrests right there in a four block

radius," Gilbert "believed" the "foil package" contained heroin

because "heroin is normally packaged in aluminum foil" "in that

area."

Investigating, Gilbert "asked [defendant] if [he] could speak

to him" and, as defendant "turned around and faced" him, inquired,

"what is in [your] hand?" Defendant responded, "what?" and became

"very evasive," "clinch[ing] his fist" and "tr[ying] to take what

was in his left hand and put it in his right hand." When

defendant "got [his hands] up around his chest," Gilbert "grabbed

[defendant's] arm, and another officer, Wayne Stewart, grabbed the

other arm," explaining that "if it's heroin, and that's all it is,

we'll deal with it. If it's not, everything is going to be all

right." Gilbert then "retrieved the foil package" and arrested

defendant for the instant offense. Subsequent investigation and

analysis of the package contents revealed .068 grams of heroin.

1 Gilbert testified he "could have written [defendant] a summons for unauthorized use of the highway by a pedestrian," but decided instead to approach him and "engage[] in a conversation."

- 3 - Prior to trial, defendant moved the court to suppress the

offending drug, complaining of a warrantless, unlawful search and

seizure. The trial court denied the motion and convicted

defendant, resulting in the subject appeal.

II.

Defendant contends Gilbert "grabbed his arm" and searched

the "foil package" with neither reasonable or articulable

suspicion that he was engaged in criminal activity nor probable

cause to arrest. We disagree, finding Gilbert had probable

cause to arrest defendant and undertake a related search of the

package.

"As a general rule of constitutional law, an officer

properly may make a warrantless arrest if he has probable cause

to believe the arrestee has committed a crime, and the officer

may search the individual incident to that lawful arrest."

Lovelace v. Commonwealth, 27 Va. App. 575, 582, 500 S.E.2d 267,

271 (1998) (internal citations omitted). "To establish probable

cause, the Commonwealth must show 'a probability or substantial

chance of criminal activity, not an actual showing' that a crime

was committed." Ford v. City of Newport News, 23 Va. App. 137,

143-44, 474 S.E.2d 848, 851 (1996) (citation omitted).

"In determining whether probable cause exists courts will

test what the totality of the circumstances meant to police

officers trained in analyzing the observed conduct for purposes

of crime control." Powell v. Commonwealth, 27 Va. App. 173,

- 4 - 177, 497 S.E.2d 899, 900 (1998) (citation omitted). "'So long

as probable cause to arrest exists at the time of the search,

. . . it is unimportant that the search preceded the formal

arrest if the arrest followed quickly on the heels of the

challenged search.'" Ross v. Commonwealth, 35 Va. App. 103,

107, 542 S.E.2d 819, 821 (2001) (quoting Carter v. Commonwealth,

9 Va. App. 310, 312, 387 S.E.2d 505, 506-07 (1990)).

Here, when first observed by Gilbert, defendant was

"walking" "down the middle of [a] street" lined with sidewalks

in a "high drug area," notorious for harboring drug dealers.

Defendant was carrying "a silver foil package" in his "loosely

cupped" hand. Based on police "training and experience,"

including "over one hundred" drug arrests and "probably

twenty-five arrests right there in a four block radius," Gilbert

believed the "foil package" contained heroin because, "[i]n that

area," "heroin is normally packaged in aluminum foil."

Approaching defendant, Gilbert noted he became "very evasive,"

"clinch[ing] his fist" and attempting to conceal the "foil

package" by transferring it from "his left hand" to "his right

hand," conduct that suggested the "package" contained

contraband.

The totality of such circumstances, viewed objectively, was

clearly sufficient to provide probable cause to believe

defendant possessed heroin, justifying an immediate warrantless

arrest and related search. Accordingly, the trial court

- 5 - correctly denied the motion to suppress, and we affirm the

conviction.

Affirmed.

- 6 -