Grandison v. Com., Record No. 061296.

• Citation: 645 S.E.2d 298
• Decision Date: 08 June 2007
• Docket Number: Record No. 061296.
• Parties: Tony Donnell GRANDISON v. COMMONWEALTH of Virginia.
• Court: Supreme Court of Virginia

645 S.E.2d 298

Tony Donnell GRANDISON v. COMMONWEALTH of Virginia.

Record No. 061296.

Supreme Court of Virginia.

June 8, 2007.

Daniel W. Hall, Senior Assistant Public Defender, for appellant.

Karri B. Atwood, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.

Present: HASSELL, C.J., LACY, KOONTZ, KINSER, LEMONS and AGEE, JJ., and STEPHENSON, S.J.

OPINION BY Senior Justice ROSCOE B. STEPHENSON, JR.

In this appeal, we determine whether a police officer violated the Fourth Amendment's prohibition against unreasonable searches and seizures when the officer removed a folded one-dollar bill from the defendant's pocket and unfolded it to reveal drugs.

I

After a bench trial in the Circuit Court of the City of Petersburg, Tony Donnell Grandison was convicted of possession of cocaine, in violation of Code § 18.2-250. During the trial, Grandison moved to suppress the evidence. The trial court denied the motion, finding that the cocaine had been legally seized under the "plain view doctrine." Thereafter, the trial court sentenced Grandison to imprisonment for ten years, with eight years suspended.

The Court of Appeals affirmed the trial court's judgment. Grandison v. Commonwealth, 48 Va.App. 314, 630 S.E.2d 358 (2006). We awarded Grandison this appeal.

II

On November 25, 2003, about 4:56 a.m., Officer Matthew P. Gilstrap of the Petersburg City Police Department was called to assist another officer in a traffic stop of a vehicle that had been reported stolen. The vehicle was stopped in a "high crime area" of downtown Petersburg that was known for drug activity.

Officer Gilstrap approached the passenger side of the vehicle and directed Grandison, the front seat passenger, to step out of the vehicle. When Grandison exited the vehicle, Officer Gilstrap immediately handcuffed Grandison because the officer was concerned for his own safety considering the time and circumstances of the detention. Officer Gilstrap then conducted a pat-down search of Grandison's outer clothing for weapons.

During the pat-down search, Officer Gilstrap felt a hard object in the front watch pocket of Grandison's jeans. The object was a cigarette lighter. When the officer looked down at the lighter, he observed a piece of drinking straw and a folded one-dollar bill protruding from the pocket.^* The dollar bill was protruding halfway out of the pocket and was folded in what Officer Gilstrap recognized as an "apothecary fold." The officer testified that, when he saw the bill's apothecary fold, he immediately recognized it as a way of packaging cocaine. Thereupon, Officer Gilstrap pulled the folded bill out of Grandison's pocket and opened it. Inside the bill, the officer discovered a substance that, from a subsequent laboratory analysis, proved to be cocaine.

Officer Gilstrap was familiar with the packaging and storage of drugs from his training and experience as a police officer. Consequently, the trial court qualified him as an expert in the packaging of drugs. Officer Gilstrap stated that an apothecary fold is a method commonly used to conceal and carry contraband. He explained that an apothecary fold results when a dollar bill "is folded three times lengthwise with the material, whatever it is that you're trying to hide on the inside, and then the two ends are folded over toward the middle."

III

In Harris v. Commonwealth, 241 Va. 146, 149, 400 S.E.2d 191, 193 (1991), we said the following:

The Fourth Amendment of the Constitution of the United States provides in part that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." This inestimable right of personal security belongs to all citizens, whether they are in the comfort of their homes or on the streets of our cities.

The Supreme Court, in Terry v. Ohio, 392 U.S. 1, 27, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968), recognized that, in certain circumstances, a police officer may conduct a limited search of a subject who has been detained but not arrested. When a detention is not an arrest based upon probable cause, the right of a police officer to search a subject is limited to a search of the subject's outer clothing "to discover weapons which might be used to assault [the officer]." Id. at 30, 88 S.Ct. 1868.

An officer who conducts a Terry pat-down search is justified in removing an item from a subject's pocket if the officer reasonably believes that the object might be a weapon. Lansdown v. Commonwealth, 226 Va. 204, 213, 308 S.E.2d 106, 112 (1983). Additionally, the removal of an item from a subject's pocket is also justified if the officer can identify the object as suspicious under the "plain feel" variation of the plain view doctrine. Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S.Ct. 2130, 124 L.Ed.2d 334 (1993); see Murphy v. Commonwealth, 264 Va. 568, 574, 570 S.E.2d 836, 839 (2002). However, an item may not be retrieved under the plain view doctrine unless it is "immediately apparent" to the officer that the item is evidence of a crime. Coolidge v. New Hampshire, 403 U.S. 443, 466, 91 S.Ct. 2022, 29 L.Ed.2d 564 (1971); Murphy, 264 Va. at 574, 570 S.E.2d at 839.

An accused's claim that evidence was seized in violation of the Fourth Amendment to the United States Constitution presents a mixed question of law and fact that we review de novo on appeal. Murphy, 264 Va. at 573, 570 S.E.2d at 838; see Ornelas v. United States, 517 U.S. 690, 691, 699, 116 S.Ct. 1657, 134 L.Ed.2d 911 (1996). The accused has the burden of showing that the denial of his suppression motion, when the evidence is considered in the light most favorable to the Commonwealth, is reversible error. McCain v. Commonwealth, 261 Va. 483, 490, 545 S.E.2d 541, 545 (2001).

IV

We find the facts in the present case to be strikingly similar to those in Harris. In Harris, a police officer seized and searched a film canister discovered on a subject's person during a pat-down search for weapons. 241 Va. at 148, 400 S.E.2d at 192. The officer justified opening the canister based upon his personal experience on "plain clothes assignments" and "making arrests," which led him to conclude that the canister contained drugs. Id. at 154, 400 S.E.2d at 196. In concluding that the officer did not have probable cause to believe that the canister contained contraband, we said,

It is true that [the officer] knew from his personal experience of working "plain clothes assignments" and "making arrests" that certain people kept their narcotics and drugs in film canisters and "things of that nature." However, law-abiding citizens, on a daily basis, also use film canisters to store film, which is a legitimate use.

Id.

We also find the facts in the present case somewhat analogous to those in Brown v. Commonwealth, 270 Va. 414, 620 S.E.2d 760 (2005). In Brown, the police found a subject who was sleeping in a car in an alley in a high-crime area. The subject had a hand-rolled cigarette in his possession. The arresting officer, based upon his experience with hand-rolled cigarettes, concluded that the cigarette contained narcotics. Id. at 417, 620 S.E.2d at 761. We held that the officer did not have probable cause to arrest the subject, stating:

[F]or the last 25 years, [we have] consistently declined to find that probable cause can be established solely on the observation of material which can be used for legitimate purposes, even though the experience of an officer indicates that such material is often used for illegitimate purposes. To support a finding of probable cause, such observations must be combined with some other circumstance indicating criminal activity.

Id. at 420-21, 620 S.E.2d at 763.

In the present case, Grandison had legal currency in his possession when Officer Gilstrap made a Terry pat-down search for weapons. At that time, all that the officer saw was about one-half of a folded dollar bill protruding from Grandison's watch pocket. As with the canister in Harris and the hand-rolled cigarette in Brown, the folded dollar bill was legal material with a legitimate purpose, even though Officer Gilstrap, based on his experience, knew that dollar bills folded in a similar manner are often used as containers for drugs. No other circumstances indicated criminal activity. Consistent with our holdings in Harris and Brown, we conclude that, in the present case, Officer Gilstrap did not have probable cause to retrieve the dollar bill from Grandison's possession.

V

We hold, therefore, that the trial court erred in refusing to suppress the evidence obtained as the result of an unlawful seizure and that the Court of Appeals erred in affirming the trial court's judgment. Accordingly, we will reverse the judgment of the Court of Appeals and remand this case to the Court of Appeals with directions to remand the case to the trial court for a new trial if the Commonwealth be so advised.

Reversed and remanded.

* The lighter and straw were not produced as evidence at trial.

Justice AGEE, with whom Justice KINSER and Justice LEMONS join, dissenting.

The majority opinion relies upon two prior decisions of this Court, Harris v. Commonwealth, 241 Va. 146, 400 S.E.2d 191 (1991) and Brown v. Commonwealth, 270 Va. 414, 620 S.E.2d 760 (2005), to conclude Officer Gilstrap did not have probable cause to seize Grandison's dollar bill containing cocaine because "the folded dollar bill was legal material with a legitimate purpose." Thus, the majority concludes the Court of Appeals erred in affirming Grandison's conviction for possession of cocaine. In my view, neither Harris nor Brown is applicable to the case at bar, and the police officer's search did not violate the Fourth Amendment's prohibition against unreasonable searches and seizures. Accordingly, I would affirm Grandison's conviction.

Neither Harris nor Brown involved the distinctive circumstance before us: the manipulation of an otherwise "legiti...