COURT OF APPEALS OF VIRGINIA
Present: Judges Frank, Kelsey and Beales
Argued at Chesapeake, Virginia
DARRIO L. COST
JUDGE ROBERT P. FRANK
DECEMBER 28, 2006
Record No. 2835-05-1
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Johnny E. Morrison, Judge
Sonya Weaver Roots (Weaver Law Offices, on brief), for appellant.
Eugene Murphy, Senior Assistant Attorney General (Robert F.
McDonnell, Attorney General, on brief), for appellee.
Darrio L. Cost, appellant, was convicted, in a bench trial, of possession with the intent to
distribute heroin, in violation of Code § 18.2-248. On appeal, he contends the trial court erred in
finding the evidence sufficient to prove intent and erred in finding the seizure of twenty capsules
of heroin after a pat down did not violate appellant’s Fourth Amendment rights. For the reasons
stated, we affirm the judgment of the trial court.
Portsmouth Police Officer B.C. Davis approached appellant, who was sitting in the
passenger’s seat of a vehicle in the parking lot for residents of a public housing property. The
officer was investigating whether the occupants in the car were residents of the property.
When Officer Davis arrived at the window, appellant “immediately reached across his
body towards his left front pants pocket.” Davis asked him what he was reaching for, but
appellant did not respond. The officer “told him to get away from his pocket. He did that
another time at which point [Davis] got him out of the vehicle.”
Appellant immediately said, “You can’t search me, but you can pat me down.” The
officer first patted down appellant’s left front pocket, the same pocket appellant had earlier
reached for. Officer Davis immediately felt numerous capsules. He felt a “large bulge” and
within that “large bulge” he felt what he believed to be heroin capsules, based on his training and
experience. Officer Davis had made 50-60 arrests involving heroin capsules over 4-1/2 years as
a police officer. He had also attended several narcotics classes.
Believing the capsules to contain heroin, Officer Davis reached into appellant’s pocket
and retrieved a baggie containing twenty capsules of heroin, with a total weight of 1.7 grams.
The baggie was found on top of a large wad of money, consisting of a twenty-dollar bill and 108
one-dollar bills. In another pocket, the officer found 5 ten-dollar bills.
On cross-examination, Davis testified the capsules could have contained over-the-counter
legal drugs such as Motrin or Tylenol, but emphasized he knew it was heroin. He had “never
arrested anybody with Motrin in their pocket.”
Detective R.M. Holley qualified as an expert witness in packaging and distribution of
narcotics. He indicated one would normally not find ingesting devices with heroin because a
user would simply open the capsule and ingest the heroin. A heavy user might use an average of
five capsules a day, thus, twenty capsules would represent three to five days use. However, the
detective indicated a heavy user “wouldn’t necessarily carry their stash with them.” The number
of capsules, when viewed with the denominations of the cash found on appellant, led Detective
Holley to conclude that “it’s inconsistent with personal use.” Holley did characterize these
circumstances as “fairly borderline.”
Additionally, Holley considered the fact that $50 cash was found in one pocket and $128
cash was found in the other pocket. He testified that it is the practice of drug sellers to separate
sale proceeds in separate pockets. Holley also indicated that, since a capsule of heroin sells for
$10, the 5 ten-dollar bills are relevant to a determination of whether appellant’s possession was
inconsistent with personal use. Detective Holley indicated the 108 one-dollar bills are also
“fairly consistent with something other than personal use . . . .” Since the arrest occurred on
December 14, a day before normal payday, the large quantity of one-dollar bills indicated
purchasers are “scraping.”
This appeal follows.
On appeal, appellant first contends the police exceeded the scope of the “pat down”1 by
seizing the capsules found in his pocket. Specifically, he argues that when the police felt the
capsules, it was not immediately apparent that the capsules were contraband, concluding the
police had no probable cause to seize the contents of his pocket. Appellant maintains that the
seizure of the capsules was unconstitutional and should have been suppressed.
In reviewing a trial court’s denial of a motion to suppress, “[t]he burden is upon
[appellant] to show that this ruling, when the evidence is considered most favorably to the
Commonwealth, constituted reversible error.” Fore v. Commonwealth, 220 Va. 1007, 1010, 265
S.E.2d 729, 731 (1980). Determining whether police may make a warrantless search or seizure
involves issues of both law and fact and is reviewed de novo on appeal. See Ornelas v. United
States, 517 U.S. 690, 696-97 (1996) (articulating standard for reviewing determinations of
reasonable suspicion and probable cause). However, “[i]n performing such analysis, we 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
Appellant does not contest the validity of the pat down.
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, 517 U.S. at 699).
During an investigative stop authorized under Terry [v.
Ohio, 392 U.S. 1 (1968)], an officer may conduct a limited search
for concealed weapons if the officer reasonably believes that a
criminal suspect may be armed and dangerous. The purpose of this
“pat down” search is not to uncover evidence of criminal activity,
but to permit the officer to conduct his investigation without
encountering a violent response.
Murphy v. Commonwealth, 264 Va. 568, 573-74, 570 S.E.2d 836, 839 (2002) (citations
In Minnesota v. Dickerson, 508 U.S. 366 (1993), the Supreme Court discussed the
seizure of contraband detected by sense of touch during a “pat down” search. The Court stated:
If a police officer lawfully pats down a suspect’s outer clothing
and feels an object whose contour or mass makes its identity
immediately apparent, there has been no invasion of the suspect’s
privacy beyond that already authorized by the officer’s search for
weapons; if the object is contraband, its warrantless seizure would
be justified by the same practical considerations that inhere in the
Id. at 375-76. “However, when the character of the item is not immediately apparent from the
‘pat down’ search, and the officer does not reasonably suspect that the item is a weapon, further
search regarding the item is not allowed because such an evidentiary search is unrelated to the
justification for the frisk.” Murphy, 264 Va. at 574, 570 S.E.2d at 839. Additionally, the police
must have probable cause to believe that the item in question is evidence of a crime or is
contraband. Arizona v. Hicks, 480 U.S. 321, 326 (1987).
The legal standard of probable cause, as the term suggests,
relates to probabilities that are based upon the factual and practical
considerations in everyday life as perceived by reasonable and
prudent persons. The presence or absence of probable cause is not
to be examined from the perspective of a legal technician. Rather,
probable cause exists when the facts and circumstances within the
officer’s knowledge, and of which he has reasonably trustworthy
information, alone are sufficient to warrant a person of reasonable
caution to believe that an offense has been or is being committed.
Taylor v. Commonwealth, 222 Va. 816, 820, 284 S.E.2d 833, 836 (1981).
“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, 877, 223 S.E.2d 887, 889 (1976).
“‘Probable cause requires only a probability or substantial chance of criminal activity, not an
actual showing of such activity.’” Boyd v. Commonwealth, 12 Va. App. 179, 188-89, 402
S.E.2d 914, 920 (1991) (quoting Illinois v. Gates, 462 U.S. 213, 243 n.13 (1983)). Moreover, an
investigating officer 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.
Texas v. Brown, 460 U.S. 730, 742 (1983).
Thus, the narrow issue before us is whether the police, based on the totality of the
circumstances, had probable cause to believe the capsules contained an illicit drug.
Appellant relies on Murphy, 264 Va. 568, 570 S.E.2d 836, to support his argument. In
Murphy, during a “pat down,” Officer Harvey felt a plastic bag, which, based on the officer’s
training and experience, led him to believe it contained marijuana. Id. at 571, 570 S.E.2d at 837.
The officer then removed the plastic bag, which, in fact, contained marijuana. Id. The Supreme
Court reversed Murphy’s conviction, holding:
Harvey’s testimony established only that the character of the object
as a plastic bag was immediately apparent from the “pat down”
search, and that he knew from his training and experience that
plastic bags often are used to package marijuana. This information
was insufficient under the holding in Dickerson to establish
probable cause to search Murphy’s pocket because Harvey’s
conclusion that the bag contained marijuana was not based on his
tactile perception of the bag’s contents. Rather, his sense of touch
revealed only that there was a plastic bag in Murphy’s pocket.
Thus, Officer Harvey lacked probable cause to seize the item from
Murphy’s pocket because the character of the bag’s contents as
contraband was not immediately apparent from the frisk.
Id. at 574-75, 570 S.E.2d at 839.
Similarly, in Harris v. Commonwealth, 241 Va. 146, 400 S.E.2d 191 (1991), the police
officer patted down Harris, and felt a film canister that he believed contained illegal drugs. The
officer seized the canister, opened it, and found illegal drugs. Id. at 148, 400 S.E.2d at 192. In
finding the officer did not have probable cause during the pat down to believe the canister
contained illegal drugs, the Supreme Court held:
[The officer] knew from his personal experience of working “plain
clothes assignments” and “making arrests” that certain people kept
their narcotics and drugs in film canisters and “things of that
nature.” However, law-abiding citizens, on a daily basis, also use
film canisters to store film, which is a legitimate use. At best, [the
officer] had a “hunch” and a report from an informant. However,
the record in this case does not contain any evidence that the
informant was reliable or credible. See Illinois v. Gates, 462 U.S.
213, 230 (1983) (such evidence “may usefully illuminate the . . .
question whether there is ‘probable cause’”).
Id. at 154, 400 S.E.2d at 196 (footnote omitted).
The Commonwealth urges us to distinguish Murphy on its facts. The Commonwealth
argues that unlike Murphy, Officer Davis immediately recognized the items as capsules of heroin
similar to those he detected in his 50-60 prior heroin capsule arrests. The Commonwealth
contends that rather than simply feeling a plastic bag as in Murphy, Davis felt numerous capsules
which he knew to be heroin.
In Murphy and Harris, the only issue before the Supreme Court of Virginia was whether
it was immediately apparent to the officers that the plastic bag or the film canister contained
illicit drugs. In Murphy, the officer’s conclusion that the bag contained marijuana was not based
on his tactile perception of the bag’s contents. Rather, his sense of touch revealed only that there
was a plastic bag in Murphy’s pocket. Murphy, 264 Va. at 574, 570 S.E.2d at 839. Here, the
officer actually felt the numerous capsules, which he knew to be contraband. A plastic bag could
accommodate any number of items, whereas a capsule, by its nature, is an individual container
designed solely for dispensing a prearranged dosage of medication. In addition, there was no
evidence of furtive gestures in Murphy or Harris. In Harris, although there was evidence that the
officer saw ‘“a lot of overt movement in the vehicle’ with its occupants reaching and ‘bobbing
around’” and Harris refused to get out of the vehicle, 241 Va. at 148, 400 S.E.2d at 192, these
facts were not part of the Supreme Court’s analysis. Rather, the analysis was premised on the
officer’s “hunch” that the canister contained illegal drugs. Id. at 154, 400 S.E.2d at 196.
However, in the instant case, when the officer approached appellant, he “immediately
reached across his body towards his left front pants pocket.” When asked what he was reaching
for, appellant did not respond. The officer told appellant to “get away from the pocket,” and
appellant again reached toward his left front pocket.
In determining whether there was probable cause to seize the capsules located in the same
pocket appellant reached for, the trial court could properly infer appellant was attempting to
conceal the illegal contents of that pocket. See Parker v. Commonwealth, 255 Va. 96, 107, 496
S.E.2d 47, 53 (1998) (noting appellant’s act of grabbing the waistband of his boxer shorts and
pulling them “to the side, up and down” in an apparent effort to prevent the crack cocaine from
falling to the ground was a consideration in evaluating whether the arresting officer had probable
cause that appellant was engaged in criminal activity).
Furtive gestures alone have been held insufficient to
establish probable cause. See People v. Superior Court, 478 P.2d
449, 454-55 (Cal. 1970) (explaining why mere furtive gestures,
without more, do not establish probable cause). However, furtive
gestures coupled with other indicia of criminal engagement may
suffice to establish probable cause. See Sibron v. New York, 392
U.S. 40, 66 (1968) (noting that “deliberately furtive actions . . . at
the approach of strangers or law officers are strong indicia of mens
rea, and when coupled with specific knowledge on the part of the
officer relating the suspect to the evidence of crime, they are
proper factors to be considered in a decision to make an arrest”
(emphasis added)); 2 Wayne R. LaFave, Search and Seizure
§ 3.6(d), at 319 (3d. ed. 1996) (“if police see a person in
possession of a highly suspicious object or some object which is
not identifiable but which because of other circumstances is
reasonably suspected to be contraband, and then observe that
person make an apparent attempt to conceal that object . . . ,
probable cause is then present” (emphasis added)).
Copeland v. Commonwealth, 42 Va. App. 424, 434, 592 S.E.2d 391, 395-96 (2004).
In addition to appellant reaching over to the same pocket containing the capsules,
appellant also failed to heed the officer’s warning to “get away from his pocket.” Appellant thus
continued this furtive behavior despite the officer’s command to refrain.
While feeling the capsules alone may not be sufficient probable cause, the totality of the
circumstances gave the officer probable cause to believe the numerous capsules contained illicit
drugs. Appellant attempted to conceal the drugs, failed to heed the officer’s demand that he
cease the furtive behavior, and failed to respond to the officer’s questions. See generally
2 Wayne R. LaFave, Search & Seizure § 3.6(f), at 364 (4th ed. 2004) (explaining that “refusal to
answer is one factor which an officer may consider, together with evidence that gave rise to his
prior suspicion, in determining whether there are grounds for arrest”). Based on the totality of
the circumstances, consisting of furtive movements and suspicious conduct, culminating in the
officer feeling numerous capsules, which based on the officer’s training and experience
contained heroin, the officer had probable cause to seize the capsules.
The trial court did not err in denying the motion to suppress.
Appellant next contends the evidence was not sufficient to prove he had the intent to
distribute heroin. He does not contest that he possessed the drugs.
When addressing the sufficiency of the evidence, we “‘presume the judgment of the trial
court to be correct’ and reverse only if the trial court’s decision is ‘plainly wrong or without
evidence to support it.’” Kelly v. Commonwealth, 41 Va. App. 250, 257, 584 S.E.2d 444, 447
(2003) (en banc) (quoting Davis v. Commonwealth, 39 Va. App. 96, 99, 570 S.E.2d 875, 876-77
(2002)). In practical terms, a reviewing court does not “‘ask itself whether it believes that the
evidence at the trial established guilt beyond a reasonable doubt.’” Stevens v. Commonwealth,
46 Va. App. 234, 249, 616 S.E.2d 754, 761 (2005) (en banc) (quoting Jackson v. Virginia, 443
U.S. 307, 318-19 (1979)) (emphasis in original), aff’d, 272 Va. 481, 634 S.E.2d 305 (2006). We
ask only whether “‘any rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’” Id. at 249, 616 S.E.2d at 761 (quoting Kelly, 41 Va. App. at 257,
584 S.E.2d at 447). ‘“This familiar standard gives full play to the responsibility of the trier of
fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts.’” Kelly, 41 Va. App. at 257-58, 584 S.E.2d at 447
(quoting Jackson, 443 U.S. at 319). Thus, we do not “substitute our judgment for that of the trier
of fact” even if our opinion were to differ. Wactor v. Commonwealth, 38 Va. App. 375, 380,
564 S.E.2d 160, 162 (2002).
“Because direct proof of intent [to distribute drugs] is often
impossible, it must be shown by circumstantial evidence.” Servis
v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165
(1988). Such evidence may include the quantity of drugs and cash
possessed and whether appellant used drugs. Possession of a large
sum of money, especially in small denominations, and the absence
of any paraphernalia suggestive of personal use, also are regularly
recognized as factors indicating an intent to distribute.
Welshman v. Commonwealth, 28 Va. App. 20, 37, 502 S.E.2d 122, 130 (1998) (en banc) (other
In accord with settled standards of appellate review, we view the evidence and all
reasonable inferences that may be drawn from that evidence in the light most favorable to the
Commonwealth, the party prevailing below. Yopp v. Hodges, 43 Va. App. 427, 430, 598 S.E.2d
760, 762 (2004).
Detective Holley, qualified as an expert in packaging and distribution of narcotics,
concluded the twenty capsules are inconsistent with personal use. Expert testimony, usually that
of a police officer familiar with narcotics, is routinely offered to prove the significance of the
weight and packaging of drugs, regarding whether possession is for personal use or for
distribution. White v. Commonwealth, 24 Va. App. 446, 453, 482 S.E.2d 876, 879 (1997).
Holley opined that while a heavy user might use an average of five capsules a day, such a heavy
user “wouldn’t necessarily carry their stash with them.” The detective further considered the
amount of cash and the denominations found on appellant. Since heroin capsules sell for $10 per
capsule, Holley indicated the 5 ten-dollar bills were a factor in reaching his conclusion. He also
pointed out that appellant had $50 cash in one pocket and $128 in the other. Holley testified that
it is the practice of drug dealers to separate sale proceeds in separate pockets.
The trial court was entitled to conclude that appellant intended to distribute heroin. See
McCain v. Commonwealth, 261 Va. 483, 493, 545 S.E.2d 541, 547 (2001) (finding that the
quantity of the drugs seized, the manner in which they are packaged, and the presence of
equipment related to drug distribution are indicia of distribution); Hunter v. Commonwealth, 213
Va. 569, 570, 193 S.E.2d 779, 780 (1973) (holding that proof that quantity possessed exceeds
that normally intended for personal use, without more, is sufficient to show intent to distribute).
For the foregoing reasons, we find that the trial court did not err in denying appellant’s
motion to suppress. Additionally, the trial court did not err in finding the evidence sufficient to
convict appellant of possession of heroin with the intent to distribute. Accordingly, the trial
court is affirmed.
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