Kirk Lee Loney v Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Bray and Annunziata
Argued at Norfolk, Virginia
BRANDON LEVAR WIGGINS
MEMORANDUM OPINION* BY
v. 	Record No. 1532-98-1 	JUDGE ROSEMARIE ANNUNZIATA
JUNE 22, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Johnny E. Morrison, Judge
Dianne G. Ringer, Senior Assistant Public
Defender, for appellant.
John H. McLees, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Brandon Levar Wiggins (“appellant”) appeals his conviction
for possession of cocaine with the intent to distribute,
contending the trial court erred on Fourth Amendment grounds by
denying his motion to suppress cocaine discovered pursuant to his
stop and arrest by officers of the Portsmouth Police Department.
Appellant contends the police arrested him without probable cause
and, therefore, the court should have suppressed cocaine
discovered on his person during a search incident to his arrest.
We find no error and affirm the decision of the trial court.
*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010,
this opinion is not designated for publication.

I.
FACTUAL BACKGROUND
On the afternoon of August 30, 1997, Officer R.K. Butler and
Officer White were sitting in a marked police vehicle on the 700
block of Peninsula Avenue in the City of Portsmouth. 	The officers
were in full uniform with badge displayed. 	As White filled out
paperwork, Butler observed appellant and another man appear on
bicycles. 	Although the two individuals were riding towards
Butler, appellant “wasn’t looking in [Butler’s] direction” as he
was “turned around” talking to his companion.
Butler noticed what appeared to be a brown, hand-rolled, bent
and wrinkled cigar hanging from appellant’s mouth. 	From these
characteristics, Butler believed the cigar was a marijuana cigar.
Butler had seen marijuana cigars before and had made “well over
twenty” arrests for possession of such cigars.
When appellant was about fifteen feet from the front of
White’s vehicle, he turned his head in Butler’s direction, quickly
raised his hand to his mouth and removed the cigar, reaching down
with it along the right side of his body. 	Butler could not tell
what appellant did with the cigar thereafter. 	Butler had observed
the cigar in appellant’s mouth for a period of five to ten
seconds.
As appellant rode by the police vehicle, Butler told him to
stop. 	After appellant complied, Butler asked what he had had in
his mouth. 	Appellant denied having had anything in his mouth.
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When Butler asked if he could search appellant’s person, appellant
withheld consent. 	However, since Butler believed that he had
probable cause to arrest appellant for possession of marijuana, he
ordered appellant to turn around so that he could conduct a
pat-down search for weapons. 	Appellant turned around and
immediately said, “I’ve got a blunt.”1 Butler looked down and
noticed a marijuana cigar sticking out of the top of the back
right pocket of appellant’s shorts. 	During a search of
appellant’s person subsequent to arrest, Butler also found a
quantity of cocaine in another pocket.
At trial, appellant moved to suppress the cocaine found on
his person on the ground that Butler did not have probable cause
to arrest him for possession of marijuana at the time he initiated
the pat-down search. 	The trial court denied the motion and found
appellant guilty of possession with the intent to distribute under
Code § 18.2-248. 	On July 6, 1998, the court sentenced appellant
to serve five years in prison, with all but two years and nine
months suspended.
II.
ANALYSIS
The Fourth Amendment ensures the right of people to be free
from unreasonable searches and seizures. 	See Terry v. Ohio, 392
U.S. 1, 9 (1968). 	Generally, evidence obtained by searches or
1A blunt is a street term for a regular cigar that has been
emptied of tobacco and replaced with marijuana.
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seizures that violate the Fourth Amendment is inadmissible at a
criminal trial. 	See Mapp v. Ohio, 367 U.S. 643, 655 (1961).
“‘Whether a search . . . is unreasonable is determined by
balancing the individual’s right to be free from arbitrary
government intrusions against society’s countervailing interest in
preventing or detecting crime and in protecting its law
enforcement officers.’” 	Sattler v. Commonwealth, 20 Va. App. 366,
368, 457 S.E.2d 398, 399-400 (1995) (quoting Stanley v.
Commonwealth, 16 Va. App. 873, 875, 433 S.E.2d 512, 513 (1993)).
It is well established that “[a] custodial arrest of a suspect
based on probable cause is a reasonable intrusion under the Fourth
Amendment” and that “a [warrantless] search incident to [such]
arrest requires no additional justification.” 	United States v.
Robinson, 414 U.S. 218, 235 (1973). 	Authority to search under
such circumstances, however, is contingent upon a lawful arrest
and, therefore, upon the existence of probable cause. 	See id.
See also Beck v. Ohio, 379 U.S. 89, 91 (1964) (“Whether [a
warrantless] arrest was constitutionally valid depends . . . upon
whether, at the moment the arrest was made, the officers had
probable cause to make it . . . .”).
The burden is on appellant to show that the trial court’s
ruling constituted reversible error. 	See McGee v. Commonwealth,
25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc). 	In
considering the trial court’s denial of a motion to suppress, we
view the evidence in the light most favorable to the Commonwealth,
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the party prevailing below. 	See Greene v. Commonwealth, 17 Va.
App. 606, 608, 440 S.E.2d 138, 139 (1994).
Ultimate questions of reasonable suspicion and probable cause
involve questions of both law and fact and are reviewed de novo on
appeal. 	See McGee, 25 Va. App. at 197, 487 S.E.2d at 261. 	We
recognize, however, “‘that a police officer may draw inferences
based on his own experience in deciding whether probable cause
exists’” and that we “‘should give due weight to a trial court’s
finding that [an] officer was credible and [his or her] inference
was reasonable.’” 	James v. Commonwealth, 22 Va. App. 740, 743-44,
473 S.E.2d 90, 91 (1996) (quoting Ornelas v. United States, 517
U.S. 690, 700 (1996)).
“‘[P]robable cause exists when the facts and circumstances
within the officer’s knowledge, and of which he has reasonably
trustworthy information, alone are sufficient to warrant a person
of reasonable caution to believe that an offense has been or is
being committed.’” 	Parker v. Commonwealth, 255 Va. 96, 106, 496
S.E.2d 47, 53 (1998) (quoting Taylor v. Commonwealth, 222 Va. 816,
820-21, 284 S.E.2d 833, 836 (1981)). 	“‘[I]n assessing an
officer’s probable cause for making a warrantless arrest, no less
strict standards may be applied than are applicable to a
magistrate’s determination that an arrest warrant should issue.’”
DePriest v. Commonwealth, 4 Va. App. 577, 584, 359 S.E.2d 540, 543
(1987) (quoting Washington v. Commonwealth, 219 Va. 857, 862, 252
S.E.2d 326, 329 (1979))‚ cert. denied, 488 U.S. 985 (1988). 	In
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determining probable cause, we test the totality of circumstances
as they would be viewed by “‘police officers trained in analyzing
the observed conduct for purposes of crime control.’” 	Id. 	The
Supreme Court of Virginia has recognized that, when viewed within
the totality of circumstances, a suspect’s attempt to avoid police
officers and to conceal an item in his or her possession are
relevant considerations which may give an officer probable cause
to believe the suspect possessed illegal drugs. 	See Parker, 255
Va. at 106-07, 496 S.E.2d at 53.
Here, Officer Butler saw appellant holding a brown cigar in
his mouth for five to ten seconds as appellant biked to within
fifteen feet of his position. 	Butler, an officer experienced in
identifying marijuana cigars, having effectuated well over twenty
arrests for possession of such cigars, described the item in
appellant’s mouth as wrinkled, hand-rolled, and bent. 	Based on
his observations and experience, Butler stated the cigar appeared
to be a marijuana cigar.
Furthermore, when appellant noticed the presence of police,
he quickly removed the cigar from his mouth and brought it down to
his side. 	Notwithstanding the fact that Butler stopped appellant
on the street immediately after he removed the cigar from his
mouth, appellant denied having held anything in his mouth upon
Butler’s inquiry.
In light of the inferences Butler drew from his experience
and the credibility the trial court afforded his testimony, we
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find that these facts are sufficient to conclude that Butler had
probable cause to arrest appellant for possession of marijuana and
that the discovery of cocaine on appellant’s person incident to
his arrest did not violate the Fourth Amendment.
Finding no error, we affirm the conviction.
Affirmed.
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