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EDWARDS v. COMMONWEALTH (54925)


NOTICE: The opinions posted here are
subject to formal revision. If you find a typographical error or
other formal error, please notify the Virginia Court of Appeals.


EDWARDS

v.

COMMONWEALTH


COURT OF APPEALS OF VIRGINIA

AUGUST 7, 2001

Record No. 1314-00-2

Present: Judges Benton, Willis and Bumgardner

Argued at Richmond, Virginia

MICHAEL LEON EDWARDS

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY

William R. Shelton, Judge

Randy B. Rowlett (Gordon,
Dodson & Gordon, on brief), for appellant.

Eugene Murphy, Assistant
Attorney General (Mark L. Earley, Attorney
General, on brief), for appellee.


MEMORANDUM OPINION[1] BY JUDGE RUDOLPH BUMGARDNER, III

The trial court convicted Michael Leon Edwards
of possession of cocaine with intent to distribute in violation
of Code Sect. 18.2-248. He contends the trial court erred in
not suppressing the drugs found when he was searched. Concluding
the officer had probable cause to search the defendant, we
affirm.

In considering a trial court’s denial of a
motion to suppress, we review the evidence in the light most
favorable to the Commonwealth. McGee v. Commonwealth, 25
Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc).
While we are bound to review de novo the ultimate
questions of reasonable suspicion and probable cause, we
"review findings of historical fact only for clear error and
. . . give due weight to inferences drawn from those facts by
resident judges and local law enforcement officers." Ornelas
v. United States
, 517 U.S. 690, 699 (1996).

Officer D.G. Henderson stopped the car in which
the defendant rode for a traffic violation. Henderson immediately
detected a strong odor of marijuana coming from the driver’s
window. Henderson requested each of the three occupants to exit
the car. He searched the driver and then the front-seat
passenger. Though he smelled marijuana on each of them, he found
none on them and his search found none in the car.

The defendant was the only passenger in the
backseat. Henderson noticed tobacco that had been removed from a
cigar wrapper "still intact on the floorboard."
Henderson knew from his training and experience that marijuana
users smoke "blunts" which are hollowed-out cigars. A
user removes the tobacco core by unwrapping the cigar, rolls
marijuana in the cigar wrap, and smokes it. Henderson asked the
defendant to step out of the car and, as he did, detected "a
strong odor of marijuana coming from his clothing."
Henderson searched the defendant and discovered plastic bags of
cocaine and $344 cash in his pockets.

The defendant testified at the suppression
hearing. He denied any of the occupants of the car had smoked
marijuana or that the car smelled of marijuana. He knew what a
blunt was but denied seeing one that night.

The trial court ruled Henderson "had a
reasonable basis for searching" the defendant. The judge
noted the smell of marijuana coming from the vehicle, the
discovery in plain view of items commonly used for smoking
marijuana, and the search of the first two occupants which failed
to reveal the source of the marijuana smoke.

Before searching the defendant, Officer
Henderson needed probable cause to believe the defendant had
committed a criminal offense or was in the process of committing
one. Parker v. Commonwealth, 255 Va. 96, 106, 496 S.E.2d
47, 53 (1998). "’[P]robable cause exists when the facts and
circumstances within the officer’s knowledge . . . alone are
sufficient to warrant a person of reasonable caution to believe
that an offense has been or is being committed.’" Id.
(quoting Taylor v. Commonwealth, 222 Va. 816, 820, 284
S.E.2d 833, 836 (1981)).

The defendant concedes the officer lawfully
stopped the car, had probable cause to search it, and lawfully
detained the defendant while doing so. However, he contends the
smell of marijuana alone did not provide probable cause to search
the defendant’s person. We do not address whether the smell of
marijuana alone provided probable cause to search the defendant
because the officer’s investigation developed significantly more
information of criminal activity than just an unattributed smell
of marijuana.

After searching the car and the other two
occupants, Henderson had not located a source of the marijuana
odor. The defendant was the only other likely source. Before the
defendant got out of the car, Henderson observed hollowed out
cigar tobacco and wrappers, which he knew were associated with
"blunts," a marijuana smoking device. They were on the
floorboard beside the defendant. After the defendant got out of
the car, Henderson smelled marijuana on the defendant’s clothing.
Concluding the defendant was engaged in criminal activity,
Henderson searched him. Henderson had a reasonable and objective
basis to search because the aggregate information pointed to the
defendant as the probable source of the suspected drugs.

We conclude that the totality of circumstances
furnished probable cause to believe the defendant was engaged in
criminal activity. Accordingly, the search was permissible, and
we affirm the trial court.

Affirmed.

 

FOOTNOTES:

[1] Pursuant to Code
Sect. 17.1-413, this opinion is not designated for
publication.

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