Lovelace v. Com.

Decision Date16 June 1998
Docket NumberRecord No. 1075-97-2.
Citation500 S.E.2d 267,27 Va. App. 575
PartiesJohn David LOVELACE v. COMMONWEALTH of Virginia.
CourtVirginia Court of Appeals

Joseph A. Sanzone (Joseph A. Sanzone Associates, P.C., on brief), Lynchburg, for appellant.

Eugene Murphy, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: BAKER and ANNUNZIATA, JJ., and COLE, Senior Judge. BAKER, Judge.

John David Lovelace (appellant) appeals his bench trial convictions by the Circuit Court of Halifax County (trial court) for possession of marijuana and possession of cocaine with intent to distribute. He contends the trial court erred in (1) denying his motion to suppress and (2) finding the evidence sufficient to prove he intended to distribute the cocaine. For the reasons that follow, we affirm the convictions.

At about 10:00 p.m. on August 23, 1996, Halifax County Deputies Sweeny and Womack saw appellant standing near a convenience store in an area "known as a[n] open air drug market." He was drinking from a green glass bottle. Deputy Sweeny believed the bottle contained beer, and he told appellant to drop the bottle and lie face down on the ground. "[S]everal other officers converg[ed] on the lot at the same time." "[D]ue to the number of people on the lot," Officer Womack thought it was in the officers' best interest "to put these subjects down on the ground so we could handle the situation if somebody wanted to act up." Womack testified that appellant was being detained because of the open container of beer.

When Womack told appellant to drop the bottle and lie face down on the ground, appellant dropped and broke the bottle. Near appellant's feet, Deputy Womack observed several open bottles of beer and five unopen bottles of beer in a carton. Womack had already seen a bottle hit a car beside appellant as Womack was approaching. Womack smelled the odor of alcohol as he was talking to appellant, although he could not say whether the odor was coming from appellant or from the bottle that had been broken nearby. The bottle which hit the car came from the area where appellant was standing, but Womack did not see whether appellant threw it.

Once appellant was on the ground, Womack asked him whether he had any drugs or guns. Appellant did not reply. Womack then patted appellant down and detected "something in his pocket ... [that] felt like a bag." "[D]uring [Womack's] experience [he'd] found drugs before on people, and sometimes they carried it in these kind[s] of bags.... [He] didn't know if it was a plastic bag or what at that time, but [he] felt some lumps and ... felt it to be squooshy." Womack could not tell what was in the bag; however, he retrieved the bag, which was later determined to contain 2.38 grams of crack cocaine rocks and 2.96 grams of marijuana. He placed appellant under arrest for possession of marijuana and cocaine. In appellant's possession, Womack found a black pouch containing $121 and a razor blade. In appellant's pocket, he found $171.30, made up mostly of ten- and twenty-dollar bills.

Womack, who had been a narcotics investigator for about a year and had participated in the investigation and prosecution of thirty-five to forty cocaine cases, was accepted by the court as an expert. He testified that the bag of cocaine found on appellant was "cut up [for sale in dollar amounts of] twenties ... [and] forties." Womack believed that the quantity of cocaine was inconsistent with personal use and consistent with distribution. Although the form of cocaine found on appellant would usually be smoked, Womack found no smoking devices on appellant or in his car. Womack further testified that possession of the money in ten- and twenty-dollar bills also was "consistent with distribution of crack cocaine."

Appellant moved to suppress the evidence, claiming he was illegally searched and seized without probable cause to arrest because the content of the open containers was not confirmed and, in fact, he had not been arrested. Even if the officers had probable cause to arrest for the alcohol offense, he contended the offense required that he be released on a summons without a custodial arrest and that Officer Womack was not entitled to conduct a search incident to arrest under those circumstances. Moreover, appellant argued that although the patdown may have been appropriate, the complete search was not permitted because Womack could not identify the plastic bag or its contents by feel and Womack did not believe the item was a gun. The trial court denied the motion to suppress, holding that the evidence was sufficient to give the officers probable cause to conduct the search.

Motion to Suppress

In reviewing a trial court's denial of a motion to suppress, "the 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). "Ultimate questions of reasonable suspicion and probable cause to make a warrantless search" involve issues of both law and fact and are reviewed de novo on appeal. See Ornelas v. United States, 517 U.S. 690, 691, 116 S.Ct. 1657, 1659, 134 L.Ed.2d 911 (1996). "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, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing Ornelas, 517 U.S. at 699,116 S.Ct. at 1663).

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, see Thompson v. Commonwealth, 10 Va.App. 117, 121, 390 S.E.2d 198, 201 (1990)

(citing United States v. Watson, 423 U.S. 411, 423, 96 S.Ct. 820, 827-28, 46 L.Ed.2d 598 (1976)), and the officer may search the individual incident to that lawful arrest. See DePriest v. Commonwealth, 4 Va.App. 577, 583, 359 S.E.2d 540, 543 (1987) (citing Illinois v. Lafayette, 462 U.S. 640, 646, 103 S.Ct. 2605, 2609-10, 77 L.Ed.2d 65 (1983)). However, if probable cause is lacking, the arrest is illegal, and any evidence seized pursuant to that arrest is subject to exclusion under Mapp v. Ohio, 367 U.S. 643, 81 S.Ct. 1684, 6 L.Ed.2d 1081 (1961).

We hold that Officer Womack's search of appellant's pocket did not violate the Fourth Amendment because probable cause existed to arrest appellant for drinking from an open container of alcohol in violation of Code § 4.1-308, a Class 4 misdemeanor. The existence of probable cause to arrest gave Womack constitutional authority to conduct a full search of appellant's person incident to that arrest.

"`The probable cause standard does not require actual knowledge. "Only the probability, and not a prima facie showing, of criminal activity is the standard of probable cause."`" Quigley v. Commonwealth, 14 Va.App. 28, 34, 414 S.E.2d 851, 855 (1992) (quoting Westcott v. Commonwealth, 216 Va. 123, 126, 216 S.E.2d 60, 63 (1975) (citation omitted)).

"As an articulated legal standard, probable cause deals with probabilities concerning the factual and practical considerations in everyday life as perceived by reasonable and prudent persons. It is not predicated upon a clinical analysis applied by legal technicians. 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."

DePriest, 4 Va.App. at 584, 359 S.E.2d at 543 (quoting Washington v. Commonwealth, 219 Va. 857, 862, 252 S.E.2d 326, 329 (1979)) (other citations omitted).

Here, the officers saw appellant drinking from a green bottle. Although that bottle was broken, the officers found at appellant's feet several open bottles of beer and five unopen bottles in a carton. Officer Womack smelled the odor of alcohol as he talked to appellant. This evidence was sufficient to give the officers probable cause to arrest appellant for drinking alcohol in public. The officers' failure to cite appellant for that offense and the Commonwealth's failure to provide evidence to support a conviction for that offense are not dispositive factors because probable cause deals with probabilities rather than certainties.

In addition, the officers' subjective motivations in searching appellant are not relevant in this case. "Subjective intentions play no role in ordinary, probable-cause Fourth Amendment analysis." Whren v. United States, 517 U.S. 806, 813, 116 S.Ct. 1769, 1774, 135 L.Ed.2d 89 (1996). "`[T]hat the officer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer's action does not invalidate the action taken as long as the circumstances, viewed objectively, justify that action.'" Id. (quoting Scott v. United States, 436 U.S. 128, 138, 98 S.Ct. 1717, 1723-24, 56 L.Ed.2d 168 (1978)) (emphasis added); see also Ohio v. Robinette, 519 U.S. 33,

___ - ___, 117 S.Ct. 417, 420-21, 136 L.Ed.2d 347 (1996); Limonja v. Commonwealth, 8 Va.App. 532, 537-38, 383 S.E.2d 476, 479-80 (1989).

Despite appellant's argument to the contrary, we hold that Code § 19.2-74 does not delimit the officers' constitutional authority to search. That code section provides, in relevant part, that where a "person is detained by or is in the custody of an arresting officer" for a violation punishable as a Class 4 misdemeanor or any other misdemeanor for which he cannot receive a jail sentence,

the arresting officer shall take the name and address of such person and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons or notice. Upon the giving of such person of his written promise to appear at such time and
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