Lovelace v. Com., Record No. 1075-97-2.

• Docket Nº: Record No. 1075-97-2.
• Citation: 500 S.E.2d 267, 27 Va. App. 575
• Case Date: June 16, 1998
• Court: Court of Appeals of Virginia

500 S.E.2d 267
27 Va. App. 575

John David LOVELACE
v.
COMMONWEALTH of Virginia

Record No. 1075-97-2.

Court of Appeals of Virginia.

June 16, 1998.

500 S.E.2d 269

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.

500 S.E.2d 268

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

500 S.E.2d 270

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.

500 S.E.2d 271

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....