White v. Com.

• Decision Date: 18 February 1997
• Docket Number: No. 1819-95-3,1819-95-3
• Court: Virginia Court of Appeals
• Parties: Darryl Lee WHITE v. COMMONWEALTH of Virginia. Record

Page 486

481 S.E.2d 486

24 Va.App. 234

Darryl Lee WHITE v. COMMONWEALTH of Virginia.

Record No. 1819-95-3.

Court of Appeals of Virginia Salem.

Feb. 18, 1997.

Rehearing En Banc Granted April 1, 1997.

B. Leigh Drewry, Jr., Lynchburg, for appellant.

Eugene Murphy, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.

Present: MOON, C.J., and ELDER and BRAY, JJ.

MOON, Chief Judge.

Darryl Lee White was convicted of possession of cocaine with intent to distribute in violation of Code § 18.2-248. He raises two questions: whether the police lacked probable cause to conduct a warrantless search and seizure; and whether the evidence is sufficient to support his conviction. We affirm.

On December 30, 1994 at approximately 9:15 p.m., Officers B.R. Nesselroade, M.R. Soyers and D.J. Riley were on duty riding together in a patrol car in Lynchburg, Virginia. Nesselroade observed a group of five to ten males in a semicircle located between 615 and 613 Federal Street. One of the men was standing with his back to the street facing the other men. The group was standing next to a beige Cadillac which Nesselroade recognized as belonging to White.

As the officers approached they heard a shout of "5-0," a street term for police. The man facing the group turned around and from a distance of approximately twenty-five feet Nesselroade recognized White. The entire group of men ran. Nesselroade watched White and observed that his hand was clenched and that as he ran he made a downward motion and opened his fist. A large white object fell out of his hand and onto the ground. Nesselroade proceeded to that spot, retrieved the object, which from his experience appeared to be a piece of cocaine, and placed it in his shirt pocket. The substance was later determined to be 1.54 grams of cocaine.

While Nesselroade retrieved the cocaine, Soyers and Riley followed the men who had run behind the residences. When the officers reached the rear of the residences, they found White sitting on the back steps of one of the houses. The officers had White stand and patted him down for weapons. Soyers knew White and called in a warrant check. Nesselroade heard the warrant check on his radio and before a response was received, he radioed Soyers and inquired if they had custody of White behind the house. Soyers replied affirmatively. Nesselroade testified, "I told them to bring him around front, that I got the dope that he dropped."

Soyers and Riley took White to the front of the residence where Nesselroade arrested White on the basis of the cocaine he had observed White drop. Nesselroade searched White and either Riley or Soyers handed Nesselroade a stocking cap they had found on White which contained $581 in various denominations. Nesselroade also found a pager on White.

After searching White, Nesselroade looked into the beige Cadillac near which White and the other men had been standing and which Nesselroade testified he recognized as White's vehicle. The front door of the car was wide open and the motor was running. Inside, Nesselroade saw what he believed to be crack cocaine shavings on the seat and floorboard. Entering the car to recover the shavings, Nesselroade also discovered, underneath an armrest, a digital scale partially wrapped in a brown paper bag.

Nesselroade testified that upon questioning, White stated that crack cocaine was present where he had been standing, that he knew different ways to weigh it, that he was familiar with the price of crack cocaine, and that it did sell for as much as the police believed. White also stated that the scale in the car did not belong to him. Nesselroade testified that White had not been informed that a scale had been found in the Cadillac prior to the time that White made the statement that he did not own the scale.

Search and Seizure

White argues that his initial detention by Soyers and Riley was an unreasonable seizure of his person and that consequently, the pager, the stocking cap and its contents, and his statement should have been excluded as fruits of an unlawful search and seizure.

In considering a trial court's ruling on a suppression motion, we view the evidence in the light most favorable to the Commonwealth and the decision of the trial judge will not be disturbed unless plainly wrong. Greene v. Commonwealth, 17 Va.App. 606, 608, 440 S.E.2d 138, 139 (1994).

Here, White was initially detained by officers executing a Terry stop and frisk. At the point that the officers approached White and patted him down, the record indicates that they had no information from Nesselroade. Consequently, to have been a lawful Terry stop and frisk, the officers' own observations and knowledge must have provided them with an articuable and reasonable suspicion of White's involvement in criminal activity. Terry v. Ohio, 392 U.S. 1, 21, 88 S.Ct. 1868, 1880, 20 L.Ed.2d 889 (1968). However, we need not determine if Soyers and Riley did in fact have such articuable and reasonable suspicion because, even assuming arguendo that the stop and frisk was improper, the ultimate search and arrest of White was based on probable cause provided by Nesselroade.

Nesselroade had probable cause to search White, and Nesselroade's order to detain White provided probable cause to Soyers and Riley because Nesselroade's knowledge constituted collective knowledge with the other officers. White argues that in Penn v. Commonwealth, 13 Va.App. 399, 412 S.E.2d 189 (1991), this Court rejected the notion of collective knowledge or the "police team" exception employed in other jurisdictions.

White misstates our holding in Penn. In Penn, an officer observed, through binoculars, the defendant litter. He conveyed this to the arresting officer who then approached the defendant and placed him under arrest. In so doing, the officer patted down the defendant and discovered cocaine in the defendant's pocket. Reviewing defendant's claim of illegal search and seizure, we concluded that a warrantless arrest for a misdemeanor committed outside the presence of the arresting officer is not valid where the information upon which the arrest is based is conveyed to the arresting officer by the witnessing officer. Id. at 404, 412 S.E.2d at 192. However, we also concluded that "[w]here an illegal arrest under Code § 19.2-81 [warrantless misdemeanor arrest committed in officer's presence] does not violate any constitutional rights, the defendant is not entitled to have evidence seized pursuant to that arrest excluded." Id. at 406, 412 S.E.2d at 193. Accordingly, we found that the witnessing officer in Penn did have probable cause and that "[t]he radio message from [the witnessing officer], which was based on [the witnessing officer's] personal observations, was sufficient to give [the arresting officer] probable cause to believe that Penn was guilty of littering." Id. at 408, 412 S.E.2d at 194.

Further, the Fourth Circuit addressed this issue directly in United States v. Laughman, 618 F.2d 1067 (4th Cir.), cert. denied, 447 U.S. 925, 100 S.Ct. 3018, 65 L.Ed.2d 1117 (1980). Therein the court found that "[t]he law seems to be clear that so long as the officer who orders an arrest or search has knowledge of facts establishing probable cause, it is not necessary for the officers actually making the arrest or conducting the search to be personally aware of those facts." Id. at 1072. Therefore, if the knowledge possessed by Nesselroade was sufficient to establish probable cause, it is inconsequential that Soyers and Riley were not fully aware of that knowledge. See id. at 1072-73.

Addressing the proper standard for assessing probable cause, the Supreme Court stated in Washington v. Commonwealth:

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.

219 Va. 857, 862, 252 S.E.2d 326, 329 (1979). Here, Nesselroade's order to detain White was based on his direct observations of White. The record indicates that Nesselroade recognized White when he fled and that Nesselroade saw White drop a white object from his hand while fleeing. Before ordering White's detention, Nesselroade had retrieved the substance, and based on his experience as a police officer familiar with drug trafficking, he concluded the substance was likely cocaine. When Nesselroade heard Soyers call in a warrant check for White, Nesselroade realized that the individual he had seen drop the cocaine had been found by Soyers.

Having found that Nesselroade had probable cause, this probable cause may be imputed to Soyers and Riley. See Laughman, 618 F.2d at 1072. Consequently, assuming arguendo, that Soyers' and Riley's seizure and patdown of White were improper, the evidence is nonetheless sufficient to find that Nesselroade's radio order provided Soyers and Riley with probable cause to place White under arrest and to escort him to Nesselroade. Accordingly, the subsequent search revealing White's pager, stocking cap and money was reasonable, and the evidence was properly admitted. We conclude that the trial court's findings are supported by the evidence.

We note that the record is unclear as to whether Soyers' and Riley's patdown of White resulted in their discovery of his stocking cap containing roughly $581. However, even assuming that the officers did discover the cap and assuming that the search was improper, the cap is nevertheless admissible under the inevitable discovery exception. Walls v. Commonwealth, 2 Va.App. 639, 655, 347 S.E.2d 175, 184 (1986). Nesselroade recognized White when the officers arrived on the scene and he observed...