ROSS v. COMMONWEALTH

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ROSS

v.

COMMONWEALTH

MARCH 13, 2001

Record No. 0666-00-2

Present: Judges Humphreys, Clements and Senior
Judge Coleman

Argued at Richmond, Virginia

QUINSHAWN P. ROSS, S/K/A

QUINSHAWN PERNELL ROSS

v.

COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND

James B. Wilkinson, Judge

OPINION BY JUDGE SAM W. COLEMAN III

Douglas A. Ramseur (Bowen, Bryant,
Champlin & Carr, on brief), for appellant.

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

Quinshawn P. Ross was convicted in a bench
trial of possession of cocaine with intent to distribute. The
sole issue on appeal is whether the trial court erred by denying
Ross’ motion to suppress. Finding no error, we affirm.

BACKGROUND

At approximately 5:00 p.m., Richmond Sheriff’s
Deputy Mark Ingram was sitting in his patrol vehicle at a traffic
intersection in a high crime area. While running a warrant check
on an unrelated matter, Ingram observed Ross approach the
passenger side of a vehicle that had stopped at the intersection.
As Ross approached the vehicle, he removed a plastic baggie from
the waistband of his shorts. Ross gave the passenger an object
from the baggie, and in exchange, the passenger handed Ross
money. Believing that he just observed a hand-to-hand drug
transaction, Ingram approached Ross and searched him. Ingram
found sixteen rocks of crack cocaine, packaged in individual
baggie corners located in a larger plastic baggie, and $110 in
currency inside Ross’ shorts.

ANALYSIS

When we review a trial court’s denial of a
motion to suppress, "[w]e view the evidence in a light most
favorable to . . . the prevailing party below, and we
grant all reasonable inferences fairly deducible from that
evidence." Commonwealth v. Grimstead, 12 Va. App.
1066, 1067, 407 S.E.2d 47, 48 (1991). "[W]e are bound by the
trial court’s findings of historical fact unless ‘plainly wrong’
or without evidence to support them." 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 consider
de novo whether those facts implicate the Fourth
Amendment and, if so, whether the officers unlawfully infringed
upon an area protected by the Fourth Amendment." Hughes
v. Commonwealth, 31 Va. App. 447, 454, 524 S.E.2d 155,
159 (2000) (en banc) (citing McGee, 25 Va.
App. at 198, 487 S.E.2d at 261).

"A warrantless search is per se
unreasonable and violative of the Fourth Amendment of the United
States Constitution, subject to certain exceptions." Tipton
v. Commonwealth, 18 Va. App. 370, 373, 444 S.E.2d 1, 3
(1994). A search made by a law enforcement officer pursuant to a
lawful custodial arrest, which, of course, must be based on
probable cause, is a well recognized exception to the warrant
requirement. United States v. Robinson, 414 U.S. 218, 235
(1973).

It is the fact of the lawful arrest which
establishes the authority to search . . . [and] in the
case of a lawful custodial arrest a full search of the person is
not only an exception to the warrant requirement of the Fourth
Amendment, but is also a "reasonable" search under that
Amendment.

Id.; see also 2 Wayne R.
LaFave, Search and Seizure ? 4.5(e), at 543-44 (3d
ed. 1996) (noting that "[i]f there is probable cause to
believe that a certain individual has on his person the evidence,
fruits, or instrumentalities of crime, it would be an unusual
case in which there was not also probable cause to believe that
this individual was a participant in the criminal activity under
investigation" such that "the more usual procedure is
simply to arrest that person and then search him incident to the
arrest" rather than first obtaining a search warrant for his
person).

The dispositive issue is whether Ingram had
probable cause

to arrest Ross.[1]
"'[T]he 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.’" DePriest v. Commonwealth, 4 Va.
App. 577, 583-84, 359 S.E.2d 540, 543 (1987) (quoting Bryson
v. Commonwealth, 211 Va. 85, 86-87, 175 S.E.2d 248, 250
(1970)); accord Michigan v. DeFillippo, 443
U.S. 31, 37 (1979). "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." Washington v.
Commonwealth, 219 Va. 857, 862, 252 S.E.2d 326, 329 (1979)
(internal quotation and citation omitted). "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

Newport News, 23 Va. App. 137, 143-44,
474 S.E.2d 848, 851 (1996) (citations omitted); accord DeFillippo,
443 U.S. at 36 ("The validity of the arrest does not depend
on whether the suspect actually committed a crime.").
"Probable cause to arrest must exist exclusive of the
incident search. [However,] [s]o long as probable cause to arrest
exists at the time of the search, . . . 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, 506-07 (1990) (internal quotations and
citations omitted).

We hold that, based on the totality of
circumstances, Ingram had probable cause to arrest Ross for
possession of a controlled substance, thereby justifying a full
search of his person. Ingram observed Ross, in a high-crime area
known for drug activity, take a plastic baggie from the waistband
of his shorts and approach a vehicle that had stopped at the
intersection. The vehicle was stopped just long enough for Ross
to hand an object from the baggie to the passenger in exchange
for currency. "If an officer has reason to believe that a
person is committing a felony in his presence by possessing
contraband or a controlled substance, the officer has probable
cause to arrest the individual without a warrant." Buck
v. Commonwealth, 20 Va. App. 298, 304, 456 S.E.2d 534, 536-37
(1995).

Ingram had reason to believe he had witnessed
Ross conduct a hand-to-hand drug transaction with the passenger
of the vehicle. Ross handed an unidentified object to the
occupant of a vehicle that had stopped at an intersection. In
return, the occupant of the vehicle handed Ross some money.
Standing alone, Ingram’s observation of the exchange of an
unidentified item for money may not have given rise to probable
cause. See generally LaFave, supra
? 3.6(b), at 299-301. However, Ingram had also observed
Ross remove a plastic baggie from inside his shorts and then
remove the object from the plastic baggie. Plastic baggies are
commonly used to store drugs. Under the totality of those
circumstances, we hold that Ingram had probable cause to arrest
Ross. See generally In re J.D.R., 637 A.2d
849 (D.C. 1994) (finding probable cause to arrest where police
officer, after making a lawful traffic stop, observed a corner of
a plastic baggie protruding from the defendant’s cast and, after
the officer requested to see the baggie, defendant attempted to
hide it); Blanding v. State, 446 So.2d 1135, 1137 (Fla.
Dist. Ct. App. 1984) (per curiam) (noting that
plastic bags are commonly used as containers for drugs); People
v. McRay, 416 N.E.2d 1015, 1018-20 (N.Y. 1980) (recognizing
that a glassine envelope is a "telltale sign of heroin"
and that the passing of a glassine envelope signals an illicit
drug transaction rather than some innocuous act). The fact that
Ingram did not see and could not identify the item that Ross
removed from the baggie does not preclude a finding of probable
cause under these circumstances. See State v. Martin,
956 P.2d 956, 958-59 (Or. 1998) (finding probable cause to arrest
where officer, who was stopped at an intersection at 11:00 p.m.
in a known drug area, observed through the rear window of the
vehicle in front of him, the defendant approach the vehicle,
after being signaled by the passenger, and put his head and one
hand in the vehicle for a few seconds; the officer did not
observe any objects or money exchanged); People v. Jones,
683 N.E.2d 14, 15 (N.Y. 1997) (finding that fact that officer did
not observe item that was exchanged for money was not dispositive
where officer was experienced and he observed the activity occur
in a drug-prone area, the manner in which the exchange was
conducted, and the defendant hide a plastic bag immediately after
the exchange). The fact that money was exchanged for an item
removed from a plastic baggie that had been secreted inside Ross’
shorts provides additional support for our finding of probable
cause. See also McRay, 416 N.E.2d at 1020
(stating that "probable cause almost surely would
exist" if money is passed in exchange for an object in a
container commonly associated with drugs); Commonwealth v.
Santaliz, 596 N.E.2d 337, 339-40 (Mass. 1992) (articulating
four factors which tend to establish probable cause, including
the "unusual nature of the transaction" which, in that
case, was the defendant approaching a taxicab that just stopped
and exchanging an object with the passenger for money); Blanding,
446 So.2d at 1137 (finding that exchanging cash for unseen
substance in plastic bag is a factor in determining probable
cause to arrest). Finally, the exchange occurred in a high crime
area with a high incidence of drug activity and the observed
activity was suspicious and furtive. See Santaliz,
596 N.E.2d at 339-40 (characterizing as furtive the defendant
removing the object from his companion’s waistband and conducting
the exchange with the passenger in silence). Although Ingram had
no drug training and had never served on a drug task force, he
was a five and one-half year veteran of the sheriff’s department
who had made approximately six drug-related arrests. See
LaFave, supra ? 3.2(c). Accordingly, based on the
totality of the circumstances, we find that Ingram had probable
cause to arrest Ross for possessing drugs with the intent to
distribute.

We affirm the trial court’s denial of Ross’
motion to suppress and, therefore, affirm the conviction.

Affirmed.

FOOTNOTES:

[1] The Commonwealth argues, and the defendant concedes,
that Ingram had reasonable suspicion that criminal activity was
afoot, sufficient to justify a Terry stop. The
Commonwealth further asserts that drugs were found in a lawful
pat-down for weapons. We disagree and find that the search of
Ross exceeded that which is permissible under Terry and,
therefore, the search must be supported by probable cause. Terry
v. Ohio, 392 U.S. 1, 29 (1968) (holding that a pat-down or a
search for weapons must "be confined in scope to an
intrusion reasonably designed to discover guns, knives, clubs, or
other hidden instruments for the assault of the police
officer"). Because the search was a generalized search for
drugs and was not a frisk for weapons based on a concern for
officer safety, Ingram must have had probable cause to believe
that Ross possessed drugs in order to justify the warrantless
search.