                               COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judges Elder and Beales
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                                             MEMORANDUM OPINION * BY
v.     Record No. 3062-07-1                                    JUDGE LARRY G. ELDER
                                                                   MAY 13, 2008
RONNIE LAVON WILLIAMS


               FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
                                Frederick B. Lowe, Judge

                 Josephine F. Whalen, Assistant Attorney General II (Robert F.
                 McDonnell, Attorney General, on brief), for appellant.

                 Melinda R. Glaubke (Slipow, Robusto & Kellam, P.C., on brief), for
                 appellee.


       Ronnie Lavon Williams (defendant) stands indicted for two offenses involving the illegal

possession of cocaine. Pursuant to Code § 19.2-398, the Commonwealth appeals a pretrial ruling

granting defendant’s motion to suppress all evidence resulting from the search of his person that

yielded the cocaine. The trial court concluded the police lacked probable cause to arrest

defendant and, thus, that the search of his person incident to arrest violated the Fourth

Amendment. Because the record on appeal supports the court’s ruling suppressing the evidence,

we affirm the ruling and remand for further proceedings consistent with this opinion.

       Examining a trial court’s ruling on a motion to suppress evidence allegedly seized in

violation of the Fourth Amendment “presents a mixed question of law and fact that we review de

novo on appeal. In making such a determination, we give deference to the factual findings of the

trial court and independently determine whether the manner in which the evidence was obtained

       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
[violated] the Fourth Amendment.” Murphy v. Commonwealth, 264 Va. 568, 573, 570 S.E.2d

836, 838 (2002) (citations omitted); see also Ornelas v. United States, 517 U.S. 690, 691, 699,

116 S. Ct. 1657, 1659, 1663, 134 L. Ed. 2d 911 (1996). The trial court is not required to make

explicit findings of fact, and when it does not make such findings, we view the evidence in the

light most favorable to the prevailing party, here the defendant, granting to the evidence all

reasonable inferences fairly deducible therefrom. Commonwealth v. Grimstead, 12 Va. App.

1066, 1067, 407 S.E.2d 47, 48 (1991). On appeal of a ruling granting a defendant’s motion to

suppress, the Commonwealth has the burden to show that the trial court’s ruling constituted

reversible error. Cf. Murphy, 264 Va. at 573, 570 S.E.2d at 838 (applying converse standard to

trial court’s ruling denying motion to suppress).

       Subject to a few specifically established exceptions, “searches conducted outside the

judicial process, without prior approval by a judge or magistrate, are per se unreasonable under

the Fourth Amendment.” Katz v. United States, 389 U.S. 347, 357, 88 S. Ct. 507, 514, 19

L. Ed. 2d 576, 585 (1967). One of the established exceptions to the Fourth Amendment’s

warrant requirement is for a “search incident to a lawful arrest.” United States v. Robinson, 414

U.S. 218, 224-26, 94 S. Ct. 467, 471-73, 38 L. Ed. 2d 427, 434-36 (1973). “[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.” Bryson v. Commonwealth, 211 Va. 85, 86-87,

175 S.E.2d 248, 250 (1970). “Probable cause exists where ‘the facts and circumstances within

[the arresting officers’] knowledge and of which they had reasonably trustworthy information

[are] sufficient in themselves to warrant a man of reasonable caution in the belief that’ an offense

has been or is being committed” by the person arrested. Brinegar v. United States, 338 U.S.

160, 175-76, 69 S. Ct. 1302, 1310-11, 93 L. Ed. 1879 (1949) (citation omitted). Probable cause

                                                -2-
to arrest must exist exclusive of the incident search. Wright v. Commonwealth, 222 Va. 188,

278 S.E.2d 849 (1981).

       We hold the trial court’s reliance on the decision in Sibron v. New York, 392 U.S. 40, 88

S. Ct. 1889, 20 L. Ed. 2d 917 (1968), supports its ruling granting the motion to suppress. In

Sibron, the Supreme Court ruled as follows:

               Patrolman Martin accosted [Sibron] in [a] restaurant, took him
               outside and searched him. The officer was not acquainted with
               Sibron and had no information concerning him. He merely saw
               Sibron talking to a number of known narcotics addicts over a
               period of eight hours. It must be emphasized that Patrolman
               Martin was completely ignorant regarding the content of these
               conversations, and that he saw nothing pass between Sibron and
               the addicts. So far as he knew, they might indeed “have been
               talking about the World Series,” [as the trial judge had originally
               hypothesized of Sibron and the addicts]. The inference that
               persons who talk to narcotics addicts are engaged in the criminal
               traffic in narcotics is simply not the sort of reasonable inference
               required to support an intrusion by the police upon an individual’s
               personal security. Nothing resembling probable cause existed until
               after the search had turned up the [drugs in Sibron’s pocket].

Id. at 62-63, 88 S. Ct. at 1902, 20 L. Ed. 2d at 934. “Thus,” concluded the Court, “the search [of

Sibron] [could not] be justified as incident to a lawful arrest.” Id. at 63, 88 S. Ct. at 1903, 20

L. Ed. 2d at 935.

       Similarly here, the detectives knew nothing about defendant when he approached their

target in a public parking lot immediately adjacent to a restaurant that was open for business. If

the trial court fully credited the detectives’ testimony, which it may or may not have done, 1 the

detectives had probable cause to believe one of the occupants of the black Lexus would be


       1
         When the trial court recounted the detectives’ testimony about information they had
obtained when an informant had earlier made a drug purchase while wearing a hidden audio
transmitter, it observed as follows:

               [E]ven though there may be some suspicion or maybe even one
               could surmise that the driver and/or occupants of the black Lexus
               were pulling into the parking lot at [the restaurant] . . . to get
                                               -3-
meeting with his drug “source” sometime that evening in order to obtain more cocaine.

However, the detectives had insufficient knowledge to provide them with probable cause to

believe defendant was that source. The detectives lacked any specific information concerning

who the drug source was, what he or she looked like, where the supplier in the black Lexus

would meet him or her, and when the meeting would take place, other than “later” that night.

       Further, the record contains no evidence that the detectives observed anything other than

innocent behavior after the black Lexus pulled into the parking lot. One of the occupants of the

black Lexus entered the restaurant, and the remaining two stood on the sidewalk while one

smoked a cigarette. When defendant approached the driver of the black Lexus as he stood on the

sidewalk, the two shook hands and engaged in conversation. 2 The detectives overheard none of

the conversation, which the trial court theorized could have involved a request for directions or

the greeting of a neighbor, and the detectives did not observe the two men exchange money for

drugs or engage in any sort of hand-to-hand transaction. As in Sibron, “So far as [the detectives]

knew, [defendant and the driver of the black Lexus] might indeed ‘have been talking about the

World Series.’” Id. at 62, 88 S. Ct. at 1902, 20 L. Ed. 2d at 934. Although one of the detectives

then saw defendant walk to the driver’s door of the adjacent green Lexus and lean inside

momentarily, he did not see what defendant did inside the car and did not observe him remove




               resupplied, the issue then is whether or not it would be reasonable
               to assume that [defendant] could, therefore, be predicted to be the
               supposed resupplier, if there was indeed a resupplier.

(Emphasis added).
       2
         Detective Recupero testified that, at approximately the same time, the passenger
standing on the sidewalk moved away from the two and closer to the outside corner of the
restaurant. The Commonwealth attempted to elicit testimony from the detective that the
passenger was acting “[l]ike a lookout or something,” but defendant objected and the court
sustained the objection.

                                               -4-
anything from the car. The detectives then arrested defendant immediately after he exited the car

without having a chance to see what he would do next.

       Although the officers may rightly have been suspicious about the reason for defendant’s

presence and his leaning into the green Lexus, 3 those suspicions fell far short of the probable

cause necessary to support defendant’s arrest. 4 Like in Sibron, “Nothing resembling probable

cause existed until after the search had turned up [drugs],” and “[i]t is axiomatic that an incident

search may not precede an arrest and serve as part of its justification.” Id. at 62-63, 88 S. Ct. at

1902, 20 L. Ed. 2d at 934; cf. McCain v. Commonwealth, ___ Va. ___, ___, ___ S.E.2d ___, ___

(Apr. 18, 2008) (holding McCain’s “brief presence at a house the officer associated with drug

activity months prior does not support a reasonable inference of criminal activity” rising to the

level of reasonable suspicion where the officer did not have any evidence of the purpose of the

visit or observe any suspicious behavior during the visit).




       3
         The trial court was not required to credit any of the testimony of the detectives and
could, without so stating on the record, have rejected their testimony that defendant, after
greeting the driver of the black Lexus, went to the green Lexus, leaned into it with his hands in a
position below the dash so that the officers could not see them, and then withdrew from the green
Lexus and closed its door immediately prior to the takedown. In ruling on the motion, the trial
court did not comment on this portion of the Commonwealth’s argument, stating, “[Defendant]
simply approached that black Lexus and struck up a conversation with the occupants thereof.”
As set out in the text, we are required, on appeal of the granting of the motion to suppress, to
view the evidence and all inferences in the light most favorable to defendant.
       4
         The Commonwealth did not argue that defendant’s detention was anything other than an
arrest and, thus, the trial court was not called upon to determine whether the police, even though
they lacked probable cause to arrest defendant, may have had a constitutionally permissible basis
for detaining and frisking him while arresting the occupants of the black Lexus. The
Commonwealth also has not advanced such an argument on appeal, conceding that the only issue
before us is whether the detectives had probable cause to arrest defendant.

                                                -5-
       For these reasons, we hold the evidence supports the trial court’s ruling that the

detectives lacked probable cause to arrest defendant. Thus, we affirm the ruling suppressing the

challenged evidence and remand for further proceedings consistent with this opinion.

                                                                          Affirmed and remanded.




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