                        COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Annunziata and Senior Judge Coleman
Argued at Richmond, Virginia


LEWIS IDERICK JOHNSON
                                            MEMORANDUM OPINION * BY
v.   Record Nos. 1438-02-2,                JUDGE SAM W. COLEMAN, III
      2019-02-2 and 2050-02-2                    APRIL 29, 2003

COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                Robert W. Duling, Judge Designate

          Craig W. Stallard, Assistant Public Defender,
          for appellant.

          Kathleen B. Martin, Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellee.


     On appeal from a conviction for possession of cocaine with

the intent to distribute, Lewis Iderick Johnson challenges the

denial of his motion to suppress.      Johnson contends the police did

not have probable cause to arrest him and that, as a result, his

post-arrest statements were inadmissible.     Finding that the trial

court erred in denying Johnson's motion to suppress, we reverse

Johnson's conviction.

                                  I.

     In reviewing a trial court's ruling on a motion to

suppress, this Court reviews the "evidence adduced at both the


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
trial and suppression hearing," Greene v. Commonwealth, 17

Va. App. 606, 608, 440 S.E.2d 138, 139 (1994), and views the

evidence in the light most favorable to the prevailing party.

See Spivey v. Commonwealth, 23 Va. App. 715, 721, 479 S.E.2d

543, 546 (1997).   "'The burden is upon [the defendant] to show

that th[e] ruling, when the evidence is considered most favorably

to the Commonwealth, constituted reversible error.'"   McGee v.

Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en

banc) (citation omitted).    While we are bound to review de novo

the ultimate questions of reasonable suspicion and probable cause,

Ornelas v. United States, 517 U.S. 690, 699 (1996), "[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."    McGee, 25 Va. App. at 198, 487 S.E.2d

at 261.

     So viewed, the evidence proved that at about 5:30 p.m. on

September 1, 2001, Officers William Breedlove and Richard Lloyd

stopped their marked police vehicle near a group of three or

four men, who were standing beside a building in the 1000 block

of North 20th Street in Richmond.    Johnson was among the group.

As the police vehicle stopped, Johnson walked from the side of

the building to the rear of the building and briefly disappeared

from the officers' sight.    A few seconds later, Johnson rejoined

the group.



                                - 2 -
     Breedlove and Lloyd approached the men and had a short

conversation with them.   Breedlove followed the path he had seen

Johnson take to the rear of the building, and Breedlove searched

the area.   On top of a concrete awning at a door to a residence

in the rear of the building, he found a plastic bag containing

twenty-one individually wrapped pieces of crack cocaine.   The

location of the bag was eight to nine feet above the ground.

Breedlove testified that the placement of the drugs "wasn't so

high that you couldn't pitch it right above your head."    The

door above which the drugs were found was located two feet from

the corner of the building.

     The officers immediately placed appellant under arrest.

After appellant was advised of his rights under Miranda v.

Arizona, 384 U.S. 436 (1966), appellant admitted that the drugs

were his and that he had intended to sell them.

                                II.

     "The 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."

Bryson v. Commonwealth, 211 Va. 85, 86-87, 175 S.E.2d 248, 250

(1970).   "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



                               - 3 -
Newport News, 23 Va. App. 137, 143-44, 474 S.E.2d 848, 851

(1996) (citations omitted).

          "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. In order to
          ascertain whether probable cause exists,
          courts will focus upon 'what the totality of
          the circumstances meant to police officers
          trained in analyzing the observed conduct
          for purposes of crime control.'"

Parker v. Commonwealth, 255 Va. 96, 106, 496 S.E.2d 47, 53

(1998) (citations omitted).   Therefore, we must determine, based

upon the totality of the circumstances, if Johnson's warrantless

arrest was justified by a reasonable belief that he was engaging

in criminal activity.

     Both the Supreme Court of Virginia and this Court have had

opportunities to consider whether the police had probable cause

to arrest a defendant who either threw away or hid an object

when the police arrived.   In McCain v. Commonwealth, 261 Va. 483,

487, 434 S.E.2d 541, 543 (2001), police officers found Elbert

McCain in the driver's seat of a parked vehicle and requested his

identification.   McCain agreed to the search of the car, refused

to permit the police to search his person, and then walked away

from the officers.   McCain walked to an apartment door behind a

set of stairs leading to the second floor.   Through openings in a

                               - 4 -
wall, an officer saw the shadow of an arm reach out and heard the

sound of a metal object making contact with metal.   Retracing

McCain's path to the area behind the stairs, the officer found a

handgun in a metal grocery cart.   Id. at 487, 454 S.E.2d at 543.

McCain fled when the officer confronted him with the weapon.     The

Court concluded that the police possessed probable cause to arrest

McCain for the possession of a concealed weapon upon the officer's

discovery of the firearm in the grocery cart and McCain's

attempted flight.   Id. at 491, 454 S.E.2d at 546.

     In Thomas v. Commonwealth, 38 Va. App. 49, 52, 561 S.E.2d

754, 755 (2002), police officers patrolling a high crime area

saw the defendant and two other men standing near a convenience

store that was posted with "no trespassing" signs.    As the

officers questioned the men about their presence and outstanding

warrants, id. at 52, 561 S.E.2d at 756, the defendant made a

throwing motion toward the back of a soda machine.    The officers

saw no item leave the defendant's hand, looked behind the soda

machine, but found only litter.    Several minutes later, after

the police had released the defendant, the officers again

searched the area behind the soda machine and found a plastic

bag containing cocaine against a chain link fence near the

machine.   Id. at 53, 561 S.E.2d at 756.   We concluded that the

police lacked probable cause to arrest the defendant and noted

that the defendant's hand motion "'was not combined with any

other circumstance which might have justified a rational belief'

                               - 5 -
that [he] had thrown the bag . . . ."     Id. at 54, 561 S.E.2d at

756 (quoting Matthews v. Commonwealth, 218 Va. 1, 3, 235 S.E.2d

306, 307 (1977)).

     The totality of the circumstances in the present case was

less indicative or suggestive of criminal activity than that

considered, and found deficient, in Thomas.     In this case,

Johnson disappeared from the police officers' vision for a few

seconds.    They did not observe Johnson make a throwing motion or

any gesture suggesting that he was secreting an object.    The

discovery, moments later, of the bag of drugs above the area to

which Johnson had walked, but which was accessible to many

others, created a suspicion that he may have placed the bag of

drugs on the awning.    This mere suspicion, however, did not

provide the police officers with probable cause to arrest

appellant for the possession of cocaine.    "[P]robable cause

. . . must be based on more than speculation, suspicion, or

surmise."    Alexander v. Commonwealth, 19 Va. App. 671, 674, 454

S.E.2d 39, 41 (1995).   Accordingly, appellant's arrest was

unlawful.

     The record contains no evidence that Johnson's statements

did not flow directly from the unlawful arrest or that "the

connection between the arrest and the statement[s] was so

attenuated as to purge the taint of the unlawful arrest."

Thomas, 38 Va. App. at 55, 561 S.E.2d at 757.    Therefore,

Johnson's statements were inadmissible.

                                - 6 -
     For the foregoing reasons, the trial court erred in denying

the motion to suppress appellant's statements.   Accordingly,

Johnson's conviction is reversed, and because the conviction

could not stand without Johnson's admissions, the indictment

against him is dismissed.

                                        Reversed and dismissed.




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