Cost v. Com.

• Decision Date: 28 December 2006
• Docket Number: Record No. 2835-05-1.
• Citation: 638 S.E.2d 714,49 Va. App. 215
• Parties: Darrio L. COST v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

Page 714

638 S.E.2d 714

49 Va. App. 215

Darrio L. COST v. COMMONWEALTH of Virginia.

Record No. 2835-05-1.

Court of Appeals of Virginia, Chesapeake.

December 28, 2006.

COPYRIGHT MATERIAL OMITTED

Sonya Weaver Roots (Weaver Law Offices, on brief), Portsmouth, for appellant.

Eugene Murphy, Senior Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: FRANK, KELSEY and BEALES, JJ.

ROBERT P. FRANK, Judge.

Darrio L. Cost, appellant, was convicted, in a bench trial, of possession with the intent to distribute heroin, in violation of Code § 18.2-248. On appeal, he contends the trial court erred in finding the evidence sufficient to prove intent and erred in finding the seizure of twenty capsules of heroin after a pat down did not violate appellant's Fourth Amendment rights. For the reasons stated, we affirm the judgment of the trial court.

BACKGROUND

Portsmouth Police Officer B.C. Davis approached appellant, who was sitting in the passenger's seat of a vehicle in the parking lot for residents of a public housing property. The officer was investigating whether the occupants in the car were residents of the property.

When Officer Davis arrived at the window, appellant "immediately reached across his body towards his left front pants pocket." Davis asked him what he was reaching for, but appellant did not respond. The officer "told him to get away from his pocket. He did that another time at which point [Davis] got him out of the vehicle."

Appellant immediately said, "You can't search me, but you can pat me down." The officer first patted down appellant's left front pocket, the same pocket appellant had earlier reached for. Officer Davis immediately felt numerous capsules. He felt a "large bulge" and within that "large bulge" he felt what he believed to be heroin capsules, based on his training and experience. Officer Davis had made 50-60 arrests involving heroin capsules over 4-1/2 years as a police officer. He had also attended several narcotics classes.

Believing the capsules to contain heroin, Officer Davis reached into appellant's pocket and retrieved a baggie containing twenty capsules of heroin, with a total weight of 1.7 grams. The baggie was found on top of a large wad of money, consisting of a twenty-dollar bill and 108 one-dollar bills. In another pocket, the officer found 5 ten-dollar bills.

On cross-examination, Davis testified the capsules could have contained over-the-counter legal drugs such as Motrin or Tylenol, but emphasized he knew it was heroin. He had "never arrested anybody with Motrin in their pocket."

Detective R.M. Holley qualified as an expert witness in packaging and distribution of narcotics. He indicated one would normally not find ingesting devices with heroin because a user would simply open the capsule and ingest the heroin. A heavy user might use an average of five capsules a day, thus, twenty capsules would represent three to five days use. However, the detective indicated a heavy user "wouldn't necessarily carry their stash with them." The number of capsules, when viewed with the denominations of the cash found on appellant, led Detective Holley to conclude that "it's inconsistent with personal use." Holley did characterize these circumstances as "fairly borderline."

Additionally, Holley considered the fact that $50 cash was found in one pocket and $128 cash was found in the other pocket. He testified that it is the practice of drug sellers to separate sale proceeds in separate pockets. Holley also indicated that, since a capsule of heroin sells for $10, the 5 ten-dollar bills are relevant to a determination of whether appellant's possession was inconsistent with personal use. Detective Holley indicated the 108 one-dollar bills are also "fairly consistent with something other than personal use. . . ." Since the arrest occurred on December 14, a day before normal payday, the large quantity of one-dollar bills indicated purchasers are "scraping."

This appeal follows.

ANALYSIS

Probable Cause

On appeal, appellant first contends the police exceeded the scope of the "pat down"¹ by seizing the capsules found in his pocket. Specifically, he argues that when the police felt the capsules, it was not immediately apparent that the capsules were contraband, concluding the police had no probable cause to seize the contents of his pocket. Appellant maintains that the seizure of the capsules was unconstitutional and should have been suppressed.

In reviewing a trial court's denial of a motion to suppress, "[t]he burden is upon [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 (1980). Determining whether police may make a warrantless search or seizure involves issues of both law and fact and is reviewed de novo on appeal. See Ornelas v. United States, 517 U.S. 690, 696-97, 116 S.Ct. 1657, 1661-62, 134 L.Ed.2d 911 (1996) (articulating standard for reviewing determinations of reasonable suspicion and probable cause). 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) (citing Ornelas, 517 U.S. at 699, 116 S.Ct. at 1663).

During an investigative stop authorized under Terry [v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)], an officer may conduct a limited search for concealed weapons if the officer reasonably believes that a criminal suspect may be armed and dangerous. The purpose of this "pat down" search is not to uncover evidence of criminal activity, but to permit the officer to conduct his investigation without encountering a violent response.

Murphy v. Commonwealth, 264 Va. 568, 573-74, 570 S.E.2d 836, 839 (2002) (citations omitted).

In Minnesota v. Dickerson, 508 U.S. 366, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993), the Supreme Court discussed the seizure of contraband detected by sense of touch during a "pat down" search. The Court stated:

If a police officer lawfully pats down a suspect's outer clothing and feels an object whose contour or mass makes its identity immediately apparent, there has been no invasion of the suspect's privacy beyond that already authorized by the officer's search for weapons; if the object is contraband, its warrantless seizure would be justified by the same practical considerations that inhere in the plain-view context.

Id. at 375-76, 113 S.Ct. at 2137. "However, when the character of the item is not immediately apparent from the `pat down' search, and the officer does not reasonably suspect that the item is a weapon, further search regarding the item is not allowed because such an evidentiary search is unrelated to the justification for the frisk." Murphy, 264 Va. at 574, 570 S.E.2d at 839. Additionally, the police must have probable cause to believe that the item in question is evidence of a crime or is contraband. Arizona v. Hicks, 480 U.S. 321, 326, 107 S.Ct. 1149, 1153, 94 L.Ed.2d 347 (1987).

The legal standard of probable cause, as the term suggests, relates to probabilities that are based upon the factual and practical considerations in everyday life as perceived by reasonable and prudent persons. The presence or absence of probable cause is not to be examined from the perspective of a legal technician. Rather, probable cause exists when the facts and circumstances within the officer's knowledge, and of which he has reasonably trustworthy information, alone are sufficient to warrant a person of reasonable caution to believe that an offense has been or is being committed.

Taylor v. Commonwealth, 222 Va. 816, 820, 284 S.E.2d 833, 836 (1981).

"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." Hollis v. Commonwealth, 216 Va. 874, 877, 223 S.E.2d 887, 889 (1976). "`Probable cause requires only a probability or substantial chance of criminal activity, not an actual showing of such activity.'" Boyd v. Commonwealth, 12 Va.App. 179, 188-89, 402 S.E.2d 914, 920 (1991) (quoting Illinois v. Gates, 462 U.S. 213, 243 n. 13, 103 S.Ct. 2317, 2335 n. 13, 76 L.Ed.2d 527 (1983)). Moreover, an investigating officer does not have to "deal with hard certainties, but with probabilities," and is permitted to make "common-sense conclusions about human behavior" in assessing a situation. Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 1543, 75 L.Ed.2d 502 (1983).

Thus, the narrow issue before us is whether the police, based on the totality of the circumstances, had probable cause to believe the capsules contained an illicit drug.

Appellant relies on Murphy, 264 Va. 568, 570 S.E.2d 836, to support his argument. In Murphy, during a "pat down," Officer Harvey felt a plastic bag, which, based on the officer's training and experience, led him to believe it contained marijuana. Id. at 571, 570 S.E.2d at 837. The officer then removed the plastic bag, which, in fact, contained marijuana. Id. The Supreme Court reversed Murphy's conviction, holding:

Harvey's testimony established only that the character of the object as a plastic bag was immediately apparent from the "pat down" search, and that he knew from his training and experience that plastic bags often are used to package marijuana. This information was insufficient under the holding in Dickerson to establish probable cause to search Murphy's pocket because Harvey's conclusion that the bag contained marijuana was not based on his tactile perception of the bag's contents. Rather, his sense of touch revealed only that there was a plastic bag in Murphy's...