Lewis Iderick Johnson v. Commonwealth ( 2003 )


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  •                         COURT OF APPEALS OF VIRGINIA
    Present: Judges Benton, Annunziata and Senior Judge Coleman
    Argued at Richmond, Virginia
    LEWIS IDERICK JOHNSON
    MEMORANDUM OPINION * BY
    v.   Record Nos. 1438-02-2,                JUDGE SAM W. COLEMAN, III
    2019-02-2 and 2050-02-2                    APRIL 29, 2003
    COMMONWEALTH OF VIRGINIA
    FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
    Robert W. Duling, Judge Designate
    Craig W. Stallard, Assistant Public Defender,
    for appellant.
    Kathleen B. Martin, Assistant Attorney
    General (Jerry W. Kilgore, Attorney General,
    on brief), for appellee.
    On appeal from a conviction for possession of cocaine with
    the intent to distribute, Lewis Iderick Johnson challenges the
    denial of his motion to suppress.      Johnson contends the police did
    not have probable cause to arrest him and that, as a result, his
    post-arrest statements were inadmissible.     Finding that the trial
    court erred in denying Johnson's motion to suppress, we reverse
    Johnson's conviction.
    I.
    In reviewing a trial court's ruling on a motion to
    suppress, this Court reviews the "evidence adduced at both the
    * Pursuant to Code § 17.1-413, this opinion is not
    designated for publication.
    trial and suppression hearing," Greene v. Commonwealth, 
    17 Va. App. 606
    , 608, 
    440 S.E.2d 138
    , 139 (1994), and views the
    evidence in the light most favorable to the prevailing party.
    See Spivey v. Commonwealth, 
    23 Va. App. 715
    , 721, 
    479 S.E.2d 543
    , 546 (1997).   "'The burden is upon [the defendant] to show
    that th[e] ruling, when the evidence is considered most favorably
    to the Commonwealth, constituted reversible error.'"   McGee v.
    Commonwealth, 
    25 Va. App. 193
    , 197, 
    487 S.E.2d 259
    , 261 (1997) (en
    banc) (citation omitted).    While we are bound to review de novo
    the ultimate questions of reasonable suspicion and probable cause,
    Ornelas v. United States, 
    517 U.S. 690
    , 699 (1996), "[i]n
    performing such analysis we are bound by the trial court's
    findings of historical fact unless 'plainly wrong' or without
    evidence to support them."    McGee, 
    25 Va. App. at 198
    , 
    487 S.E.2d at 261
    .
    So viewed, the evidence proved that at about 5:30 p.m. on
    September 1, 2001, Officers William Breedlove and Richard Lloyd
    stopped their marked police vehicle near a group of three or
    four men, who were standing beside a building in the 1000 block
    of North 20th Street in Richmond.    Johnson was among the group.
    As the police vehicle stopped, Johnson walked from the side of
    the building to the rear of the building and briefly disappeared
    from the officers' sight.    A few seconds later, Johnson rejoined
    the group.
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    Breedlove and Lloyd approached the men and had a short
    conversation with them.   Breedlove followed the path he had seen
    Johnson take to the rear of the building, and Breedlove searched
    the area.   On top of a concrete awning at a door to a residence
    in the rear of the building, he found a plastic bag containing
    twenty-one individually wrapped pieces of crack cocaine.   The
    location of the bag was eight to nine feet above the ground.
    Breedlove testified that the placement of the drugs "wasn't so
    high that you couldn't pitch it right above your head."    The
    door above which the drugs were found was located two feet from
    the corner of the building.
    The officers immediately placed appellant under arrest.
    After appellant was advised of his rights under Miranda v.
    Arizona, 
    384 U.S. 436
     (1966), appellant admitted that the drugs
    were his and that he had intended to sell them.
    II.
    "The test of constitutional validity [of a warrantless
    arrest] is whether at the moment of arrest the arresting officer
    had knowledge of sufficient facts and circumstances to warrant a
    reasonable man in believing that an offense has been committed."
    Bryson v. Commonwealth, 
    211 Va. 85
    , 86-87, 
    175 S.E.2d 248
    , 250
    (1970).   "To establish probable cause, the Commonwealth must
    show 'a probability or substantial chance of criminal activity,
    not an actual showing of such activity.'"   Ford v. City of
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    Newport News, 
    23 Va. App. 137
    , 143-44, 
    474 S.E.2d 848
    , 851
    (1996) (citations omitted).
    "The presence or absence of probable cause
    is not to be examined from the perspective
    of a legal technician. Rather, probable
    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. In order to
    ascertain whether probable cause exists,
    courts will focus upon 'what the totality of
    the circumstances meant to police officers
    trained in analyzing the observed conduct
    for purposes of crime control.'"
    Parker v. Commonwealth, 
    255 Va. 96
    , 106, 
    496 S.E.2d 47
    , 53
    (1998) (citations omitted).   Therefore, we must determine, based
    upon the totality of the circumstances, if Johnson's warrantless
    arrest was justified by a reasonable belief that he was engaging
    in criminal activity.
    Both the Supreme Court of Virginia and this Court have had
    opportunities to consider whether the police had probable cause
    to arrest a defendant who either threw away or hid an object
    when the police arrived.   In McCain v. Commonwealth, 
    261 Va. 483
    ,
    487, 
    434 S.E.2d 541
    , 543 (2001), police officers found Elbert
    McCain in the driver's seat of a parked vehicle and requested his
    identification.   McCain agreed to the search of the car, refused
    to permit the police to search his person, and then walked away
    from the officers.   McCain walked to an apartment door behind a
    set of stairs leading to the second floor.   Through openings in a
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    wall, an officer saw the shadow of an arm reach out and heard the
    sound of a metal object making contact with metal.   Retracing
    McCain's path to the area behind the stairs, the officer found a
    handgun in a metal grocery cart.   Id. at 487, 454 S.E.2d at 543.
    McCain fled when the officer confronted him with the weapon.     The
    Court concluded that the police possessed probable cause to arrest
    McCain for the possession of a concealed weapon upon the officer's
    discovery of the firearm in the grocery cart and McCain's
    attempted flight.   Id. at 491, 454 S.E.2d at 546.
    In Thomas v. Commonwealth, 
    38 Va. App. 49
    , 52, 
    561 S.E.2d 754
    , 755 (2002), police officers patrolling a high crime area
    saw the defendant and two other men standing near a convenience
    store that was posted with "no trespassing" signs.    As the
    officers questioned the men about their presence and outstanding
    warrants, id. at 52, 561 S.E.2d at 756, the defendant made a
    throwing motion toward the back of a soda machine.    The officers
    saw no item leave the defendant's hand, looked behind the soda
    machine, but found only litter.    Several minutes later, after
    the police had released the defendant, the officers again
    searched the area behind the soda machine and found a plastic
    bag containing cocaine against a chain link fence near the
    machine.   Id. at 53, 561 S.E.2d at 756.   We concluded that the
    police lacked probable cause to arrest the defendant and noted
    that the defendant's hand motion "'was not combined with any
    other circumstance which might have justified a rational belief'
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    that [he] had thrown the bag . . . ."     Id. at 54, 561 S.E.2d at
    756 (quoting Matthews v. Commonwealth, 
    218 Va. 1
    , 3, 
    235 S.E.2d 306
    , 307 (1977)).
    The totality of the circumstances in the present case was
    less indicative or suggestive of criminal activity than that
    considered, and found deficient, in Thomas.     In this case,
    Johnson disappeared from the police officers' vision for a few
    seconds.    They did not observe Johnson make a throwing motion or
    any gesture suggesting that he was secreting an object.    The
    discovery, moments later, of the bag of drugs above the area to
    which Johnson had walked, but which was accessible to many
    others, created a suspicion that he may have placed the bag of
    drugs on the awning.    This mere suspicion, however, did not
    provide the police officers with probable cause to arrest
    appellant for the possession of cocaine.    "[P]robable cause
    . . . must be based on more than speculation, suspicion, or
    surmise."    Alexander v. Commonwealth, 
    19 Va. App. 671
    , 674, 
    454 S.E.2d 39
    , 41 (1995).   Accordingly, appellant's arrest was
    unlawful.
    The record contains no evidence that Johnson's statements
    did not flow directly from the unlawful arrest or that "the
    connection between the arrest and the statement[s] was so
    attenuated as to purge the taint of the unlawful arrest."
    Thomas, 38 Va. App. at 55, 561 S.E.2d at 757.    Therefore,
    Johnson's statements were inadmissible.
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    For the foregoing reasons, the trial court erred in denying
    the motion to suppress appellant's statements.   Accordingly,
    Johnson's conviction is reversed, and because the conviction
    could not stand without Johnson's admissions, the indictment
    against him is dismissed.
    Reversed and dismissed.
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