DePriest v. Com.

• Decision Date: 04 August 1987
• Docket Number: No. 0005-86-2,0005-86-2
• Citation: 4 Va.App. 577,359 S.E.2d 540
• Court: Virginia Court of Appeals
• Parties: Boyd DePRIEST v. COMMONWEALTH of Virginia. Record

Page 540

359 S.E.2d 540

4 Va.App. 577

Boyd DePRIEST v. COMMONWEALTH of Virginia.

Record No. 0005-86-2.

Court of Appeals of Virginia.

Aug. 4, 1987.

John H. Herbig (Parker, Pollard & Brown, P.C., Richmond, on briefs), for appellant.

Leah A. Darron, Asst. Atty. Gen. (Mary Sue Terry, Atty. Gen., on brief), for appellee.

Present: BENTON, COLE and KEENAN, JJ.

KEENAN, Judge.

Boyd DePriest was convicted in a jury trial of possession of heroin in violation of Code § 18.2-248. He was sentenced in accordance with the jury's verdict to seven years incarceration. On appeal, DePriest argues that the heroin found in his possession should have been suppressed as the product of an illegal search. We affirm the judgment of conviction, finding that the search of DePriest, which revealed heroin, was a lawful search incident to his arrest.

I.

The events giving rise to this case took place during the late evening of July 25 and early morning of July 26, 1985. Detective D.R. Carter, an eleven year veteran of the Richmond Bureau of Police, Narcotics Division, testified that he was conducting a surveillance in the vicinity of Second and Clay Streets in Richmond when he observed DePriest and Michael Toney arrive together at 9:30 p.m. Shortly thereafter, Carter observed Toney receive money from a female and saw Toney and DePriest leave the scene for five or six minutes. When they returned, Toney handed something to the female. Carter could not identify what was exchanged.

At 10:20 p.m. Carter observed Toney receive money from a male. According to Carter, Toney and DePriest again left for five minutes and when they returned, Toney handed an item to the man. Carter could not identify the item.

At 10:45 p.m. Carter observed the arrival of a man known to him as James Hopkins. Carter testified that he knew Hopkins because he had arrested him in 1978 and 1985 for "heroin, preludin." Carter saw Toney approach Hopkins and observed that "there was hand contact between the two." Carter could not see what, if anything, was exchanged. After the hand contact, Toney "disappeared into a one-story garage." Hopkins then approached DePriest and handed him money. According to Carter, DePriest counted the money and put it in his pocket. Hopkins left the area and shortly thereafter Toney returned and handed money to DePriest. Carter observed DePriest sit down on the curb and count the money before placing it in his pocket.

At 11:10 p.m. Carter observed hand contact between DePriest and Toney at a Coke machine near the Golden Comb Beauty Shop. Toney then went into an alley and returned within three minutes. He and DePriest approached a female who was handed "some item" by Toney. At 11:15 p.m. Carter observed DePriest talking with a different female. Carter testified that DePriest "signaled" to Toney, who in turn signaled the female to whom Toney had previously handed an item. All four of these people then went to the Coke machine where Carter observed one of the females hand money to DePriest. Carter also observed "hand contact" between the female and DePriest after she handed him money. DePriest then went into the alley and returned three minutes later. At this point, Carter observed further "hand contact" between DePriest and Toney, after which both men went back into the alley.

At 11:31 p.m. DePriest and Toney came out of the alley. Carter observed Toney approach a male and hand something to him. The man examined the item and put it in his pocket. Toney then went into the home of "a guy named Majors," who Carter described as "an old man that uses drugs and alcohol." Toney returned to the alley and came out with a small brown paper bag.

At 12:30 a.m. Carter observed DePriest and Toney go to an apartment located over the Golden Comb. Carter testified that he could see them in the apartment, but could not tell what they were doing. He testified that he also saw three females in the apartment. Within three minutes, the females came out of the apartment and walked past Carter's surveillance point. Carter testified that one of the females "had in her hand a plastic bag which she was looking at, and it had [a] white powdery substance."

When DePriest and Toney exited the apartment, Carter directed other officers to follow them to a location where they could be detained and searched. Specifically, Carter testified: "I directed the officers to detain them based on my observations and I would respond and I also directed the officers to search both individuals."

Pursuant to Carter's request, DePriest and Toney were stopped on Sixth Street by Detectives Evans, Jackson and Cox. Evans testified that he conducted a pat down search of DePriest for weapons while Jackson conducted a similar pat down of Toney. Nothing was found on either man at this point.

Carter arrived within a few minutes and conducted a further search of Toney. He testified: "I searched Michael Toney's pockets. I retrieved one plastic bag from Mr. Toney's pocket which contained the white powder. Mr. Toney and Mr. DePriest were then arrested and charged with possession of heroin with intent to distribute." Carter acknowledged that if he had not found any drugs on Toney he would not have arrested DePriest.

Carter further testified that after DePriest was arrested, he conducted another pat down search for weapons and found nothing other than some money. He confirmed that no controlled substances were found on DePriest at this time. According to Carter, his arrest of DePriest was "based upon my observations 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."

Following his arrest, DePriest was taken to the office of the Narcotics Division where he was searched by Detective Gary Clarke. The search revealed that DePriest had in his underwear a plastic bag containing six smaller plastic bags. The smaller bags contained a white powder. Examination of the powder established that it consisted of 1.025 grams of heroin.

DePriest filed a pre-trial motion to suppress the heroin found on his person. He argued that his arrest was unlawful because the only basis for his arrest was the fact that Toney was found in possession of one package of suspected heroin. A suppression hearing was held at which DePriest, Carter, and Clark testified. After hearing the evidence and arguments of counsel, the court ruled that the arrest of DePriest was "appropriate" and denied the motion to suppress.

On appeal, DePriest renews his argument that the search which revealed heroin on his person was undertaken pursuant to an illegal arrest. He argues in this regard that Carter's observations led to nothing beyond an unparticularized suspicion, which under Article I, Section 10 of the Constitution of Virginia, is insufficient to establish probable cause. DePriest concedes that Carter possessed sufficient grounds to justify a brief detention pursuant to the authority of Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). He argues, however, that once the first pat down search revealed no weapons or incriminating evidence, there was no further justification to hold him. Accordingly, he argues that he was illegally detained at the time Carter found incriminating evidence in Toney's pocket. Finally, DePriest argues that the Commonwealth is bound by the testimony elicited at the suppression hearing and may not rely, as it has done on brief, on evidence presented at trial.

The Commonwealth argues that Carter's observations over a three and a half hour period, combined with his experience as a narcotics detective, gave him probable cause to arrest DePriest and Toney at the time he initially ordered that they be stopped. Further, the Commonwealth argues that even if Carter did not have probable cause to arrest, he at least had reasonable suspicion to detain DePriest and Toney and that once suspected heroin was found in Toney's possession, Carter had probable cause to arrest DePriest. The Commonwealth concedes that the search of Toney's pocket may have exceeded the scope of a Terry stop, but it argues that DePriest lacks standing to challenge the search of Toney. It, therefore, argues that the fruits of this search may be used against DePriest even if they were improperly seized from Toney.

II.

Initially, we reject DePriest's argument that the Commonwealth may not rely on any testimony which was presented at trial, but not presented at the suppression hearing. A similar argument was made in Carroll v. United States, 267 U.S. 132, 45 S.Ct. 280, 69 L.Ed. 543 (1925). There, the Supreme Court stated:

If the evidence given on the trial was sufficient, as we think it was, to sustain the introduction of the [evidence], it is immaterial that there was an inadequacy of evidence when application was made for its return. A conviction on adequate and admissible evidence should not be set aside on such a ground. The whole matter was gone into at the trial, so no right of the defendants was infringed.

Id. at 162, 45 S.Ct. at 288. Accordingly, we will look to the entire record in determining whether the heroin found on DePriest was lawfully seized. Further, the burden is on DePriest to show that the trial court's denial of his suppression motion constituted reversible error. Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert. denied, 449 U.S. 1017, 101 S.Ct. 579, 66 L.Ed.2d 477 (1980).

The validity of the seizure of heroin from DePriest at the police station depends upon the validity of his arrest. If DePriest was properly arrested, it follows that the subsequent full body search which revealed heroin was a lawful search incident to arrest. Illinois v. Lafayette, 462 U.S. 640, 646, 103 S.Ct. 2605, 2609, 77 L.Ed.2d 65 (1983). DePriest does not contest this conclusion. Instead, he...