Commonwealth of Virginia v. Kebvin Shaquan Foster ( 2002 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Bumgardner
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 1779-01-1 JUDGE ROBERT P. FRANK
JANUARY 4, 2002
KEBVIN SHAQUAN FOSTER
FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Louis R. Lerner, Judge
Marla Graff Decker, Assistant Attorney
General (Randolph A. Beales, Attorney
General; Margaret W. Reed, Assistant Attorney
General, on brief), for appellant.
Theophlise L. Twitty for appellee.
Indicted for possession of cocaine, pursuant to Code
§ 18.2-248, Kebvin Shaquan Foster (appellee) moved the trial court
to suppress the cocaine found on him, contending the officer did
not have probable cause to arrest him for possession of cocaine.
Following a hearing on that motion, the trial court granted the
motion, finding that the police had no probable cause to arrest.
The Commonwealth appeals pursuant to Code § 19.2-398, contending
the police had probable cause to arrest. We agree with the
Commonwealth and reverse the trial court.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
BACKGROUND
On March 30, 2001, Hampton Police Officer Brian Snyder was
driving toward 435 Dare Avenue, a known narcotics location.
Snyder saw "several subjects" in that area of Dare Avenue, a
location where the police "had received several complaints of drug
activity taking place."
Snyder, who was still in his vehicle, "got within six feet of
the group [where appellant was standing] . . . [and saw] the
[appellee] at that time with his right hand behind his back."
Appellee's back was towards the officer.
Snyder observed appellee reach behind his back with his hand
closed, but "as he reached into his pants it opened up." "I could
see at that time suspected cocaine in his hand in a plastic
baggie." Snyder described the cocaine as a golf-ball-sized
object. When appellee removed his hand from his pants, his hand
was empty.
On cross-examination, defense counsel asked the officer, "You
didn't know it to be cocaine, did you?" The officer replied, "I
didn't have it tested at that time, no." Defense counsel then
asked, "[Y]ou didn't know what it was?" The officer replied,
"[N]o sir."
The following exchange took place between defense counsel and
Snyder:
Q. Did you have a reason to believe -- not
just a suspicion -- that what he had was
cocaine? Did you have reason to believe
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that it was cocaine or you suspected it to
be cocaine? It's two different questions.
A. Excuse me?
Q. Did you suspect it to be cocaine?
A. No, sir. I saw an off-white substance
that we retrieved before in the past which
came back after being tested which could be
at that point suspected cocaine reaching in
the back of his pants. The reason I
testified it was suspected cocaine is
because --
Q. You suspected it to be cocaine?
A. Exactly. It had not been tested to be
proven to be --
On re-direct, Snyder specifically stated the object "looked
like cocaine."
Snyder testified that he had been with the special
investigative unit of the Hampton police for four years. Snyder
attended "basic undercover school, narcotics investigation
school, advanced tactical school," and a class at the state
forensic laboratory on the identification of narcotics. The
officer had made between 60-100 arrests for possession of
cocaine during his tenure with the investigative unit.
After observing the item in appellee's hand, Snyder exited
his vehicle and asked appellee to put his hands on the car. The
officer told appellee that he had seen him put suspected cocaine
in the back of his pants. At first, appellee resisted the
officer, but after the officer repeated the request, Foster put
his hands on the car. Snyder pulled appellee's rear waistband
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away from his body and saw the plastic baggie with the suspected
cocaine. After retrieving the bag, the officer arrested
appellee for possession of cocaine. The officer also found $503
and a cell phone on the appellee.
At the suppression hearing, appellee argued the officer
only "suspected" the object to be cocaine, that the officer only
had "reasonable suspicion" and not probable cause to arrest.
The trial court described appellee's argument as follows:
"If he doesn't articulate probable cause and he only articulates
the word suspect, [defense counsel] argues that's reasonable
suspicion. Therefore, he doesn't have anything more to do at
that point than to pat him down and he can't search him."
Defense counsel agreed with this explanation of the motion to
suppress.
The trial court discussed the argument with the prosecutor:
[THE COURT:] You're asking the Court to
infer from the remainder of the testimony
that he had the probable cause to do the
search beyond the fact that he has
articulated nothing but a suspicion. You're
asking the Court to read into every other
fact he testified about for the Court to
make a determination that there was probable
cause for him to search. Is that correct?
THE COMMONWEALTH: Yes, Your Honor.
THE COURT: Even though he hasn't
articulated the words probable cause. He
only articulated suspicion. You're saying I
can go beyond his articulation and I can say
he had the probable cause to do the search.
He could do more than a pat-down at that
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point even though he has not articulated
that to me.
THE COMMONWEALTH: Yes, Your Honor.
The trial court then granted appellee's motion to suppress
the fruits of the search. The Commonwealth appealed this
ruling.
ANALYSIS
"It is well established that on appeal the burden is on the
appellant[, the Commonwealth in this instance,] to show,
considering the evidence in a light most favorable to
[appellee], that the [granting] of a motion to suppress
constitutes reversible error." Commonwealth v. Tart, 17 Va.
App. 384, 390-91, 437 S.E.2d 219, 223 (1993).
Questions of reasonable suspicion and
probable cause . . . are subject to de novo
review on appeal. See McGee v.
Commonwealth, 25 Va. App. 193, 197, 487
S.E.2d 259, 261 (1997) (en banc). "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 . . . ." Id. at
198, 487 S.E.2d at 261.
Archer v. Commonwealth, 26 Va. App. 1, 8, 492 S.E.2d 826, 830
(1997).
"[T]he test of constitutional validity [of a
warrantless arrest and incidental search] 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) (citing Brinegar v. United
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States, 338 U.S. 160 (1949)). To establish
probable cause, the Commonwealth must show
"'a probability or substantial chance of
criminal activity, not an actual showing'"
that a crime was committed. Ford v. City of
Newport News, 23 Va. App. 137, 143-44, 474
S.E.2d 848, 851 (1996) (quoting Illinois v.
Gates, 462 U.S. 213, 243 n.13 (1983)). "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." Hollis v.
Commonwealth, 216 Va. 874, 876-77, 223
S.E.2d 887, 889 (1976) (citation omitted).
The issue of whether probable cause existed
to make a warrantless search involves
questions of both law and fact and is
reviewed de novo on appeal. See McGee v.
Commonwealth, 25 Va. App. 193, 197-98, 487
S.E.2d 259, 261 (1997) (en banc) (citing
Ornelas v. United States, 517 U.S. 690, 691
(1996)).
Powell v. Commonwealth, 27 Va. App. 173, 176-77, 497 S.E.2d 899,
900-01 (1998).
Appellee relies on DePriest v. Commonwealth, 4 Va. App.
577, 359 S.E.2d 540 (1987), to support his contention. In
DePriest, we held an officer's observation of several "hand to
hand" transactions was not sufficient for probable cause to
arrest because the officer "did not observe suspected narcotics
change hands nor did he observe the exchange of any object which
in his experience suggested narcotics." Id. at 585, 359 S.E.2d
at 544 (emphasis added).
Here, the officer, trained and experienced in drug
interdiction and having made between 60-100 drug arrests, saw in
appellee's hand a substance he "suspected" was a baggie
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containing cocaine. He also testified the object "looked like
cocaine." This event occurred in a location known for
narcotics. In addition, appellee clearly attempted to hide the
item from the police.
Powell is more applicable to these facts than DePriest.
Officers arrested Powell after observing him in a high crime
area, making furtive gestures as if to discard something that
appeared to be cocaine. Powell, 27 Va. App. at 177, 497 S.E.2d
at 901. We held, "[I]t was reasonable for [Officer] Stokes,
drawing upon his training and experience, to conclude that the
substance was probably cocaine." Id. This presumption,
together with Powell's behavior, gave the officers probable
cause for the arrest.
Here, the police had received several complaints about drug
activity on this particular street. Appellee was standing in
this area with several other people. The officer observed him
hiding something that "looked like cocaine" in the back of his
pants. Under these circumstances, it was reasonable for Snyder,
drawing upon his training and experience, to conclude that the
substance probably was cocaine. He then had probable cause for
the arrest.
The fact that the officer did not intone the words
"probable cause" is of no moment. An officer is not required to
use these particular words in order for a trial court to find
probable cause existed. "'[P]robable cause is measured against
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an objective standard.'" Taylor v. Commonwealth, 10 Va. App.
260, 266, 391 S.E.2d 592, 595-96 (1990) (quoting United States
v. Salinas-Calderon, 728 F.2d 1298, 1300 (10th Cir. 1984)
(citing Beck v. Ohio, 379 U.S. 89, 96, (1964))). Probable cause
exists when, after examining the totality of the circumstances,
"'"the facts and circumstances within the arresting officers'
knowledge and of which they had reasonably trustworthy
information are sufficient in themselves to warrant a man of
reasonable caution in the belief that" an offense has been or is
being committed.'" Jefferson v. Commonwealth, 27 Va. App. 1,
12-13, 497 S.E.2d 474, 479-80 (1998) (quoting Brinegar, 338 U.S.
at 175-76 (quoting Carroll v. United States, 267 U.S. 132, 162
(1925))).
The use of legal terms such as "probable cause" and
"reasonable suspicion" by the witnesses clearly does not enter
into this determination. If Snyder had stated that he had
probable cause, but in fact he did not, the trial court would
not be bound by that subjective belief or his legal conclusion.
An officer's subjective belief or statement that he had probable
cause does not bind a court to agree with that determination.
See Dickerson v. Commonwealth, 35 Va. App. 172, 183, 543 S.E.2d
623, 628-29 (2001) ("[T]he officer's subjective beliefs are
irrelevant for purposes of determining whether the officer
actually had probable cause to arrest."). Conversely, the
failure of an officer to testify using the "magic words," i.e.,
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probable cause, does not require a court to find an arrest was
illegal.
Here, we are not reviewing the trial court's findings of
historical fact. Credibility is not an issue in this argument.
The parties agree on the facts. We need determine only whether,
based on the facts known to Snyder, would a man of reasonable
caution believe an offense had been or was being committed, thus
giving him probable cause to arrest appellee. See Jefferson, 27
Va. App. at 12-13, 497 S.E.2d at 479-80.
While the officer spoke in terms of "suspected cocaine,"
his testimony clearly explained he used the term because he
could not be absolutely certain the item in the baggie was
cocaine until the laboratory analysis was completed. See
Armstrong v. Commonwealth, 29 Va. App. 102, 110-11, 510 S.E.2d
247, 250-51 (1999) (explaining that officers have probable cause
to arrest a suspect observed holding something that, based on
the officers' experience, training, and the surrounding
circumstances, they believe or suspect is illegal narcotics).
See also Purdie v. Commonwealth, 36 Va. App. 178, 188-89, 549
S.E.2d 33, 38 (2001) (finding probable cause to arrest where the
officer's training, experience, and the surrounding
circumstances led him to believe the defendant was attempting to
conceal drugs, although the officer did not see the item the
defendant attempted to hide); Carson v. Commonwealth, 12 Va.
App. 497, 502, 404 S.E.2d 919, 922 ("[A]n investigating officer
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does not have to 'deal with hard certainties, but with
probabilities,' and is permitted to make 'common-sense
conclusions about human behavior' in assessing a situation" for
probable cause. (quoting Texas v. Brown, 460 U.S. 730, 742
(1983))), aff'd en banc, 13 Va. App. 280, 410 S.E.2d 412 (1991),
aff'd, 244 Va. 293, 421 S.E.2d 415 (1992).
We conclude, therefore, that Officer Snyder had probable
cause to arrest appellant for possession of cocaine; therefore,
the search of his person incident to the arrest was lawful.
"'When an officer has probable cause to arrest a person, the
officer may search the person . . . .'" Williams v.
Commonwealth, 21 Va. App. 263, 267, 463 S.E.2d 679, 681 (1995)
(quoting Buck v. Commonwealth, 20 Va. App. 298, 304, 456 S.E.2d
534, 537 (1995)). We reverse the decision of the trial court
and remand for trial on the indictment.
Reversed and remanded.
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