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COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, McClanahan and Senior Judge Coleman
Argued by teleconference
Record No. 1000-03-2
COMMONWEALTH OF VIRGINIA
DAVID GARLAND ELLIOTT
BY JUDGE ROBERT P. FRANK
SEPTEMBER 4, 2003
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
Timothy J. Hauler, Judge
H. Elizabeth Shaffer, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellant.
Craig S. Cooley for appellee.
David Garland Elliott (appellee) was indicted for possession
of cocaine with the intent to distribute, in violation of Code
? 18.2-248. He filed a motion to suppress the cocaine, as
evidence collected in violation of his Fourth Amendment rights.
The trial court granted the motion. The Commonwealth appeals the
ruling, pursuant to Code ? 19.2-398. For the reasons stated, we
find the trial court erred in suppressing the cocaine and remand
for further proceedings.
On September 17, 2002, Officer James Venti of the
Chesterfield County Police Department received an anonymous
telephone call at the police station. The caller indicated a
transaction was occurring at the parking lot of Caddy’s
restaurant, involving a white male parked in a red Ford F-250
pickup truck. The caller gave specific descriptions of both the
white male and the truck. The tipster told Venti that the white
male had drugs in the steering wheel where the airbag should be.
On cross-examination, the officer admitted the anonymous tipster
did not disclose his location nor did the caller indicate he
observed the incident.
In response to this information, Venti "put a BOL out"
the police radio channel, indicating "a red Ford pickup
doing a drug deal in Caddy’s parking lot." Venti indicated
truck was "a red Ford 250" and requested that an
officer in an
unmarked car confirm the information. Chief of Police Carl R.
Baker heard the radio transmission. As he was driving an
car and wearing a business suit, Baker answered the call.
In Caddy’s parking lot, Baker saw a red pickup truck with two
males inside. He obtained a partial license plate number from
vehicle. Baker watched the truck, but did not observe any
criminal activity. When Baker exited the parking lot, the truck
drove out behind him. Baker noticed the driver of the truck
failed to signal before turning onto Winterfield Road. At that
point, Baker lost sight of the truck. He later observed other
police units stopping the same Ford truck.
Officer Peter J. Cimbal was on patrol in a marked police car
that same evening when he heard Officer Venti’s "BOL"
additional information over the radio. Officer Cimbal saw the
Ford traveling on Winterfield Road, radioed the complete license
plate number to the dispatcher, and followed the truck.
When the pickup truck reached the stop sign at the
intersection of Salisbury and Westfield Roads, the driver failed
to come to a complete stop and failed to activate his right-turn
signal before turning onto Salisbury Road. Cimbal radioed the
other police cars in the area that he "had enough to stop
vehicle." He waited for other police units to arrive and
activated his emergency equipment. Appellee, the driver of the
truck, stopped the vehicle in a Walgreen’s parking lot.
When Officer Cimbal walked to the driver’s side of the truck,
he "could smell an odor of alcohol coming from the vehicle
driver rolled the window down." Upon request, appellee
his identification. In response to Cimbal’s question, appellee
denied that he had consumed any alcohol. Cimbal then asked him
step out of the truck for field sobriety tests. As appellee got
out of the vehicle, Cimbal noticed his movements were "very
his speech was "somewhat slurred and slow," and his
"really glassy and bloodshot." Cimbal had to ask
appellee to step
away from the truck "so he wasn’t leaning against it before
[Cimbal] began to test." The officer indicated he had no
knowledge of appellee’s normal speech pattern.
After appellee told Cimbal he had a high school education,
the officer conducted several field sobriety tests. Cimbal asked
appellee to recite the alphabet, beginning with the letter
continuing to the letter "V." Appellee recited the
correctly, but did not stop at "V," continuing instead
to the end
of the alphabet. The officer indicated appellee failed that test
because he did not follow the instructions. Appellee
satisfactorily counted forwards and backwards as directed.
When performing a "one-legged stand," appellee set his
down on numbers seven, nine, and twelve as he counted from one
thirty. He used his arms to maintain his balance and, "on
occasion," placed his foot on the ground. Prior to this
particular test, the officer asked appellee whether he had
medical problems at all." Appellee replied he had a weak
and Cimball told him "he could use the leg of his choice to
on, whichever was the stronger." The record is silent as to
leg he used. The trial court assumed appellee chose his stronger
Officer Cimbal arrested and handcuffed appellee for driving
under the influence (DUI), then placed him in the police unit.
Although the officer knew at that point he could have searched
the truck as a search incident to arrest, nevertheless, Cimbal
asked appellee for consent to search. Appellee refused to give
consent, denying drugs were in the truck. Officer Cimbal then
requested a drug dog. The dog and his handler arrived within
thirty minutes of the request. The dog alerted "for the
of drugs" to the driver’s side of the truck and to
The officers then searched the truck. On the floorboard,
between the driver’s and passenger’s seat, they found a digital
scale. When they removed the steering wheel cover, they
discovered a bag of powder cocaine, a marijuana smoking device,
and "a couple" of small bags of marijuana.
At the hearing on the motion to suppress, appellee argued the
anonymous tipster was unreliable and the source of his
was unknown. He also argued nothing corroborated the tip. He
further contended the police did not have probable cause to
him for DUI and, therefore, any search incident to the illegal
arrest was also unconstitutional.
The trial court granted the motion to suppress. While
finding the initial stop was proper, based on two traffic
violations, the court concluded the police did not have probable
cause for the DUI arrest. The trial court explained:
We really don’t have erratic driving. We’ve
got testimony with regard to two relatively
minor violations that probably happen on a
regular basis everywhere in the country, and
that is failure to use a turn signal . . .
and failure to stop at a stop sign. . . .
We’ve got an odor of alcohol. I don’t know
what that’s worth. An odor of alcohol just
basically says somebody’s had a drink.
* * * * * * *
We’ve got further his speech was slow.
Again, not an indicia necessarily of
intoxication, although it could be
consistent with intoxication. Movements
slow and deliberate. Not necessarily
dispositive of intoxication, but certainly a
possible indicia. Glassy eyes and bloodshot
eyes. Could be attributable to a number of
factors. You don’t have any of the
objective factors pertaining to this
Defendant that in and of themselves are
clearly dispositive of someone who is
intoxicated, but only someone who may have
been consuming alcohol.
* * * * * * *
You’ve got an alphabet count, or an alphabet
recitation, and I guess you could say he
went too far so he didn’t follow the
directions. You’ve got a numerical count,
which he did okay, and a stork stand. We
don’t know which ankle was the weak
ankle. . . . And we do know the officer
said, well, take your choice of which ankle
you want to stand on. I can only assume
from the evidence that he chose his better
ankle. But we’ve got a stork stand that by
and large was not performed to the level of
I’ve got no testimony about slurred speech,
just that the stork stand was not performed
to the level of perfection. I’ve got an
odor of alcohol. I’ve got two minor traffic
* * * * * * *
[T]his Court does not find that there is
sufficient objective factors to support the
arrest for [DUI].
* * * * * * *
I do not find that, otherwise, that there
was probable cause for the seizure that took
The Commonwealth appealed this decision.
The sole issue before this Court is whether the police had
probable cause to arrest appellee for DUI.
In his brief,
appellee concedes that, if the police had probable cause to
arrest, the subsequent search was lawful. Further, appellee does
not contest the validity of the traffic stop.
"Upon appeal from a trial court’s ruling on a motion to
suppress, we must view the evidence in the light most favorable
the prevailing party, in this instance appellee, granting to him
all reasonable inferences fairly deducible from the
Commonwealth v. Spencer, 21 Va. App. 156, 159, 462 S.E.2d 899,
"[W]e are bound by the trial court’s
findings of historical fact unless ‘plainly
wrong’ or without evidence to support
them[,] and we give due weight to the
inferences drawn from those facts by
resident judges and local law enforcement
officers." McGee v. Commonwealth, 25
Va. App. 193, 198, 487 S.E.2d 259, 261
(1997) (en banc) (citing Ornelas v. United
States, 517 U.S. 690, 699 (1996)). However,
we review de novo the trial court’s
application of defined legal standards such
as probable cause and reasonable suspicion
to the particular facts of the case. See
Shears v. Commonwealth, 23 Va. App. 394,
398, 477 S.E.2d 309, 311 (1996); see also
Ornelas, 517 U.S. at 699.
Hayes v. Commonwealth, 29 Va. App. 647, 652, 514 S.E.2d 357, 359
The Supreme Court of Virginia has defined probable cause,
"Probable cause, as the very name implies,
deals with probabilities. These are not
technical; they are the factual and
practical considerations in every day life
on which reasonable and prudent men, not
legal technicians, act. Probable cause
exists when the facts and circumstances
within the arresting officer’s knowledge and
of which he has reasonable trustworthy
information are sufficient in themselves to
warrant a man of reasonable caution in the
belief that an offense had been or is being
committed." Saunders v. Commonwealth, 218
Va. 294, 300, 237 S.E.2d 150, 155 (1977).
Derr v. Commonwealth, 242 Va. 413, 421, 410 S.E.2d 662, 666
(1991). When determining whether probable cause supports an
arrest, we do not examine each element separately for a
determinative fact, but instead consider the "totality of
circumstances." Yancey v. Commonwealth, 30 Va. App. 510,
518 S.E.2d 325, 328 (1999).
Probable cause does not require the officer’s "belief be
correct or more likely true than false" nor is "an
showing" of criminal behavior required. Purdie v.
36 Va. App. 178, 185, 549 S.E.2d 33, 37 (2001). "[R]ather,
‘only a probability or substantial chance of criminal
activity[,]’ Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983);
Quigley v. Commonwealth, 14 Va. App. 28, 34, 414 S.E.2d 851, 855
(1992)[,]" need be shown to justify an arrest. Purdie, 36
Va. App. at 185, 549 S.E.2d at 37.
Code ? 18.2-266 prohibits "any person to drive or operate
any motor vehicle . . . (ii) while such person is under the
influence of alcohol . . . ." "[B]eing ‘under the
alcohol’ is established when any person has consumed enough
alcoholic beverages to ‘so affect his manner, disposition,
speech, muscular movement, general appearance or behavior, as to
be apparent to observation.’" Thurston v. City of
Va. App. 475, 483, 424 S.E.2d 701, 705 (1992) (quoting Gardner
v. Commonwealth, 195 Va. 945, 954, 81 S.E.2d 614, 619 (1954)).
Thus, our inquiry here is whether the facts, examining the
totality of the circumstances, were sufficient to warrant a man
of reasonable caution in the belief that appellee had drunk
enough alcohol to observably affect his "manner,
speech, muscular movement, general appearance or behavior."
We conclude Officer Cimbal had probable cause to arrest the
appellee for DUI. Appellee failed to stop at an intersection
controlled by a stop sign. He did not signal to turn right.
The officer smelled "an odor of alcohol" as appellee
window down. Appellee denied consuming any alcohol. See Dowden
v. Commonwealth, 260 Va. 459, 469, 536 S.E.2d 437, 442 (2000)
(If the fact finder believes a defendant is lying, he "may
that the accused is lying to conceal his guilt."). His
movements were "very slow," his speech was
"somewhat slurred and
slow," and his eyes were "really glassy and
Clarke v. Commonwealth, 32 Va. App. 286, 296, 527 S.E.2d 484,
489 (2000) (officer had probable cause to arrest for public
drunkenness where he smelled alcohol, observed suspect’s
bloodshot eyes, and noted his erratic speech). While he
successfully completed the "counting" field sobriety
did not follow the officer’s instructions on the
test. While performing the "stork stand," he put his
several times and used his arms to maintain balance. See Fierst
v. Commonwealth, 210 Va. 757, 760, 173 S.E.2d 807, 810 (1970)
(officer had probable cause for an arrest based on suspect’s
posture, fumbling, appearance, and manner of exiting his car,
although the officer detected no odor of alcohol and did not
conduct any field sobriety tests).
Based on the totality of the circumstances, rather than
looking at each discrete fact in isolation, a reasonable person
properly could infer appellee had drunk enough alcohol to
affect his manner, disposition, speech, muscular movement,
general appearance or behavior, as to be apparent to
observation.’" Thurston, 15 Va. App. at 483, 424 S.E.2d at
Therefore, the officer had probable cause to arrest appellee.
Appellee in his brief refers to the trial court’s "factual
determination" of no probable cause. While appellee
states that we are bound by the trial court’s "findings of
historical fact," Hayes, 29 Va. App. at 652, 514 S.E.2d at
here, the facts are not in dispute. The only issue before us is
the application of the legal standard for probable cause to
those facts. As stated earlier, we review de novo
determinations of "probable cause." Id.
The appellee also contends the arrest for DUI was a
"pre-text to the ultimate motivation of searching the
investigating the anonymous tip." As we said in Limonja v.
Commonwealth, 8 Va. App. 532, 537-38, 383 S.E.2d 476, 480
The objective sufficiency of the reasons for
the stop is the test for determining whether
the stop is pretextual. Police actions are
to be tested "under a standard of objective
reasonableness without regard to the
underlying intent or motivation of the
officers involved." Scott v. United States,
436 U.S. 128, 138 (1978) (footnote omitted).
Having found the officer had probable cause to arrest appellee
for DUI, the appellee’s argument of a pretextual arrest fails.
We reverse the decision of the trial court granting the
motion to suppress, and we remand for further proceedings.
Reversed and remanded.
Code ? 17.1-413, this opinion is not
designated for publication.
In its brief,
the Commonwealth does not maintain the
anonymous tip and the drug dog’s reactions provided probable
cause to search the vehicle.