Carl Thomas Brown, Jr. v. Commonwealth ( 1995 )

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Moon, Senior Judges Duff and Hodges
CARL THOMAS BROWN, JR.
v. Record No. 0852-94-3 MEMORANDUM OPINION * BY
CHIEF JUDGE NORMAN K. MOON
COMMONWEALTH OF VIRGINIA AUGUST 8, 1995
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Mosby G. Perrow, III, Judge
Elizabeth P. Murtagh, Assistant Public
Defender, for appellant.
Thomas C. Daniel, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.
Carl Thomas Brown, Jr. appeals his conviction of possession
of cocaine with the intent to distribute. Brown asserts that the
trial court erred by failing to suppress certain evidence in his
trial and that the evidence introduced by the Commonwealth was
insufficient to support his conviction. We disagree and affirm.
On the night of November 19, 1993, Officer H.W. Duff, Jr.
was dispatched to the 300 block of Walnut Street, in response to
a complaint about three males described as African Americans,
wearing jackets and jeans, who were allegedly gambling and
selling drugs. When Officer Duff arrived, he saw three African
American males and a female, all wearing jackets and jeans, on
the porch at 315 Walnut Street. As he approached, he saw a clear
plastic baggie in Brown's hand. When Officer Duff asked what it
*
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
was, Brown simply handed him the baggie. Duff noted that it
contained a white residue, which he concluded was cocaine.
Believing that the substance was cocaine, Officer Duff told
Brown to turn around and place his hands on a pillar for a
weapons pat-down. During the pat-down, Brown consented to a
further search of his person, but then broke free and fled when
Officer Duff attempted to reach into his coat pocket.
Officer Duff pursued Brown and placed him under arrest for
obstructing justice. Searching him incident to the arrest, Duff
recovered two plastic baggies containing chunks of cocaine.
Subsequent to receiving his Miranda rights, Brown confessed to
Officer Duff that he was selling the drugs to support his
personal drug habit.
On appeal, Brown contends that the trial court's order must
be reversed because his Fourth Amendment rights were violated.
He contends that the officer did not have a reasonable suspicion
that a crime had occurred and that there was no basis to conduct
a Terry investigatory stop.
Well established Fourth Amendment jurisprudence
has placed police-citizen confrontations into three
categories. First, there are communications between
police officers and citizens that are consensual and,
therefore, do not implicate the Fourth Amendment.
Second, there are brief investigatory stops which must
be based on specific and articulable facts which, taken
together with rational inferences from these facts,
reasonably warrant a limited intrusion. Third, there
are highly intrusive, full-scale arrests, which must be
based on probable cause.
Iglesias v. Commonwealth, 7 Va. App. 93, 99, 372 S.E.2d 170, 173
(1988).
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Officer Duff's initial contact with the appellant falls
squarely into the consensual category of police-citizen
confrontations. Officer Duff approached Brown in the yard of
Ronnie Rucker, a friend of Brown. He did not detain Brown or
seize him in any manner. When Officer Duff asked Brown what he
had in his hand, Brown simply handed him the baggie. At that
moment, when Officer Duff detected the presence of a white
powdery residue, which he concluded was cocaine, there was
probable cause to arrest.
In assessing an officer's probable cause for making a
warrantless arrest, "[t]he test of constitutional validity 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."
Penn v. Commonwealth, 13 Va. App. 399, 407-08, 412 S.E.2d 189,
194 (1991) (internal quote was omitted). Officer Duff had both
the information given by the informant that Brown was dealing
drugs and the belief that the substance within the baggie was
cocaine. These facts were sufficient to support a reasonable
belief that the appellant had committed the crime of possession
of a controlled substance.
Probable cause to arrest must exist exclusive of the
incident search. . . . So long as probable cause to
arrest exists at the time of the search, however, it is
unimportant that the search preceded the formal arrest
if the arrest "followed quickly on the heels of the
challenged search."
Carter v. Commonwealth, 9 Va. App. 310, 312, 387 S.E.2d 505,
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506-07 (1990). It is, therefore, not necessary to determine if
Officer Duff had Brown's consent or whether Officer Duff had
probable grounds for an arrest. "[I]f the police have probable
cause to effect an arrest, a limited search may be justified even
in the absence of a formal arrest." Cupp v. Murphy, 412 U.S.
291, 295-96 (1973). Therefore, the trial court did not err in
admitting the evidence found during the search.
"Where `the commission of the crime has been fully confessed
by the accused, only slight corroborative evidence is necessary
to establish the corpus delicti." Clozza v. Commonwealth, 228
Va. 124, 133, 321 S.E.2d 273, 279 (1984), cert. denied, 469 U.S.
1230 (1985). The fact that the appellant possessed cocaine is
sufficient to corroborate the appellant's confession that he
intended to distribute the drugs in order to support his own drug
habit. Therefore, the evidence was sufficient to prove that the
appellant possessed the cocaine with the intent to distribute.
Affirmed.
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