                       COURT OF APPEALS OF VIRGINIA


Present: Judges Elder, Annunziata and Clements
Argued at Richmond, Virginia


JAMES A. SHELTON
                                           MEMORANDUM OPINION * BY
v.   Record No. 0153-02-2                   JUDGE LARRY G. ELDER
                                              DECEMBER 31, 2002
COMMONWEALTH OF VIRGINIA


          FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                    Walter W. Stout, III, Judge

          J. Kevin Clarke for appellant.

          Michael T. Judge, Assistant Attorney General
          (Jerry W. Kilgore, Attorney General, on
          brief), for appellee.


     James A. Shelton, (appellant) appeals from his bench trial

conviction for possession of a Schedule I controlled substance

with intent to distribute pursuant to Code § 18.2-248.     On

appeal, he contends the trial court erroneously denied his

motion to suppress because the evidence established he was

unlawfully seized and searched.   We hold the initial seizure and

frisk of appellant were reasonable in the course of the

officers' arrest of appellant's probable companion on an

outstanding warrant.   Nevertheless, we conclude the facts failed

to support (1) the trial court's ruling that the drugs would

inevitably have been discovered in the course of appellant's


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
arrest on an outstanding warrant or (2) the Commonwealth's

alternate theory at trial that the officer developed probable

cause to search appellant for weapons or drugs.   Thus, we

reverse appellant's conviction and remand for further

proceedings consistent with this opinion if the Commonwealth be

so advised.

     On appeal of a ruling on a motion to suppress, we view the

evidence in the light most favorable to the prevailing party,

here the Commonwealth, granting to the evidence all reasonable

inferences deducible therefrom.    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), but we review de novo the trial court's application

of defined legal standards such as probable cause and reasonable

suspicion to the particular facts of the case, Ornelas v. United

States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d

911 (1996).

                                  A.

                  THE SEIZURE AND WEAPONS FRISK

     A law enforcement officer in possession of a warrant for

the arrest of a specific individual may seize a person whom he

has reasonable suspicion to believe is the person named in the


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warrant.     See, e.g., Washington v. Commonwealth, 29 Va. App. 5,

10-11, 509 S.E.2d 512, 514-15 (1999) (en banc).     The officer may

detain the individual briefly in order to identify him.       Id.    In

addition, under appropriate circumstances, an officer in the

process of arresting one individual may briefly detain another

in close proximity, "both for [the other person's] safety and

the safety of the officers and other bystanders."     Welshman v.

Commonwealth, 28 Va. App. 20, 32, 502 S.E.2d 122, 127-28 (1998)

(en banc).    Finally, when an officer is rightly in the presence

of an individual and has reasonable suspicion that the person is

armed and dangerous, he may frisk that person for weapons.          See

4 Wayne R. LaFave, Search and Seizure § 9.5(a), at 246 (3d ed.

1996).    The requirement that an officer be rightly in the

presence of the person frisked means that the officer must have

a duty to be in the person's presence, such as to execute a

search warrant or conduct an arrest of some other person.       See

id.

      Here, Richmond Police Detective Brian Corrigan knew the

Chesterfield officers had a warrant for the arrest of Brian

Roland.    Although Detective Corrigan did not know the offense

for which Roland was being arrested or what Roland looked like,

Corrigan had been involved in a five-month investigation

involving drug use in Roland's apartment and at least one other

apartment adjoining it.    Roland's "name had come up" in relation


                                - 3 -
to a variety of drugs, including marijuana, cocaine and ecstacy.

Two weeks earlier, Corrigan had been involved in the arrest of a

person in an adjoining apartment in which gun holsters were

found, and Corrigan had information about weapons "going in and

out of the two main apartments."

     Immediately prior to the attempt to arrest Roland, police

surveilled his apartment building and made arrangements for an

informant to lure him into the dimly lit alley behind the

apartment building.    They agreed to handcuff Roland, the

informant and "everybody" in the immediate vicinity in order to

assure the safety of the informant and the officers.    The

informant, after calling Roland's apartment, reported people

were using drugs in the apartment at that time and that Roland

was on his way down.   Although the officers believed only Roland

would be coming to the alley to meet the informant, a

Chesterfield officer conducting surveillance immediately behind

the apartment building reported over his radio that "there were

two individuals that came out of the apartment together and were

approaching the [informant]."   (Emphasis added).   When Detective

Corrigan arrived on the scene, he saw one individual walking

toward the informant and saw a second individual, also walking

in the direction of the informant, "maybe ten steps" behind the

first individual.

     Under these circumstances, we hold Detective Corrigan had

reasonable suspicion to detain appellant briefly to determine
                             - 4 -
whether he was Roland.   He also had reasonable suspicion, based

on his involvement in an ongoing investigation of Roland and

others in the apartment building involving drugs and guns, that

appellant might be armed and dangerous, which justified his

frisk of appellant for weapons.

     Further, even after determining that appellant was not

Roland, 1 Officer Corrigan acted reasonably in detaining appellant

briefly in order to protect appellant, the informant and the

officers while they completed their apprehension of Roland.

Although the officers did not know with certainty whether

appellant and Roland exited the same apartment, they

simultaneously exited the same apartment building and walked

toward the informant no more than ten steps apart.   The

informant had reported the occupants of Roland's apartment were

using drugs immediately prior to Roland's apprehension, and

appellant himself appeared to be under the influence of

something when Detective Corrigan seized him.


     1
       The record does not establish precisely when this
occurred. When Detective Corrigan was asked on
cross-examination whether he heard the Chesterfield officers
refer immediately to the other individual they had stopped by
Roland's nickname of "Rick Dog," Corrigan testified that he was
"concentrating on [appellant]" at that time and that it was
"[p]ossible or impossible" that he could have heard the
Chesterfield detectives call Roland by his nickname. We assume
without deciding that Corrigan learned appellant was not Brian
Roland when appellant identified himself as James Shelton.
Detective Corrigan gave no indication that he disbelieved
appellant's statement or that he took additional steps to
confirm that appellant was not Brian Roland.

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     Finally, Roland's apprehension occurred in the alley behind

the apartment building in full view of Roland's apartment.

Although the officers in the alley outnumbered civilians by at

least three to one, Detective Corrigan could reasonably have

feared what any other occupants of Roland's apartment might do

if they observed Roland's arrest through the window or were

alerted to Roland's arrest by appellant, should he be allowed to

leave the scene prematurely.

     Thus, Detective Corrigan's brief detention and initial

weapons frisk of appellant's waistband area and pockets were

reasonable.   However, because Detective Corrigan identified

nothing in the course of the weapons frisk which he suspected

was a weapon or knew was any type of contraband, we must examine

the reasonableness of Corrigan's further search of appellant.

                                  B.

                       INEVITABLE DISCOVERY

     The trial court found appellant did not consent to the

search of his pocket or pants leg 2 but nevertheless concluded the

drugs found in his socks were admissible because they would

inevitably have been discovered pursuant to appellant's arrest

on the Chesterfield warrant.   We hold the facts do not support

an inevitable discovery theory.


     2
       Whether appellant gave voluntary consent for any part of
the search was a question of fact, see, e.g., Bynum v.
Commonwealth, 23 Va. App. 412, 418, 477 S.E.2d 750, 753 (1996),
the correctness of which is not before us in this appeal.
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        The exclusionary rule provides that evidence obtained in a

search or seizure which violates the Fourth Amendment may not be

admitted into evidence.     See, e.g., Walls v. Commonwealth, 2

Va. App. 639, 651, 347 S.E.2d 175, 182 (1986).    The inevitable

discovery exception to the exclusionary rule permits admission

of that evidence if the Commonwealth proves, by a preponderance

of the evidence, that the contraband "would ultimately or

inevitably have been discovered" in spite of the illegal

conduct.     Id. at 655, 347 S.E.2d at 184 (citing Nix v. Williams,

467 U.S. 431, 444 (1984)).    In order to have evidence admitted

under the inevitable discovery exception, the Commonwealth must

show:

             "(1) a reasonable probability that the
             evidence in question would have been
             discovered by lawful means but for the
             police misconduct, (2) that the leads making
             the discovery inevitable were possessed by
             the police at the time of the misconduct,
             and (3) that the police also prior to the
             misconduct were actively pursuing the
             alternative line of investigation."

Id. at 656, 347 S.E.2d at 185 (quoting United States v. Cherry,

759 F.2d 1196, 1204 (5th Cir. 1985)) (emphasis added).

        Here, the evidence failed to support a finding that there

was "'a reasonable probability that the evidence in question

would have been discovered by lawful means but for the police

misconduct.'"     Id. (quoting Cherry, 759 F.2d at 1204).   Although

a warrant for appellant's arrest existed in Chesterfield, no

evidence established that Detective Corrigan or any of the other
                             - 7 -
officers at the scene was aware of this fact before they ran the

warrants check.   Although Corrigan had been involved in an

ongoing drug investigation of Roland's apartment building, he

did not recognize appellant's name when appellant identified

himself.   Further, the record does not indicate precisely when

the Chesterfield detective offered to run the warrants check for

appellant or when Detective Corrigan accepted the offer.

Finally, no evidence established that a warrants check would

have been performed as a matter of course solely as a result of

the initial detention.

     Thus, the record does not establish "'a reasonable

probability that the [drugs in appellant's socks] would have

been discovered [pursuant to a search incident to arrest on the

outstanding warrant] but for the police misconduct.'"     Id.

(quoting Cherry, 759 F.2d at 1204).   Because the sequence of

events is unclear in the record, it does not exclude the

possibility that the fruit of Detective Corrigan's unreasonable

search of appellant's pocket or pants leg influenced his

decision regarding whether to run a warrants check.

                                C.

                  SEARCH OF POCKET AND PANTS LEG

     Finally, we agree with appellant that the alternate legal

theory presented by the Commonwealth to the trial court did not

render the discovery and seizure of the drugs reasonable.       The

Commonwealth argued at trial that the searches of appellant's
                             - 8 -
pocket and pants leg were reasonable.   The trial court made no

express finding on that issue before it concluded the drugs were

admissible under the inevitable discovery doctrine.   It observed

only that Detective Corrigan "pulled up the pant leg" and that

"[he] may not have been able to [do that] under the circumstance

[in] which it was done here."

     An officer rightly in the presence of an individual may

frisk that person for weapons based on reasonable suspicion that

a person may be armed and dangerous.    See LaFave, supra,

§ 9.5(a), at 246.   However, where no evidence indicates the

officer felt an object he could reasonably have believed was a

weapon, the act of reaching into an individual's pocket or

lifting his pants leg constitutes a search, for which the

officer must have had either consent or probable cause.      See

Harris v. Commonwealth, 241 Va. 146, 150-51, 400 S.E.2d 191, 194

(1991) (quoting Sibron v. New York, 392 U.S. 40, 65-66, 88

S. Ct. 1889, 1904, 20 L. Ed. 2d 917 (1968)) (pocket); see also

United States v. Craft, 30 F.3d 1044, 1045 (8th Cir. 1994)

(holding implicitly that lifting of pants leg was not justified

by consent for pat down).   But see, e.g., Hodges v. State, 678

So. 2d 1049, 1051 (Ala. 1996) (approving lifting of pant leg

during pat down to check "hard leather boots" for weapon).

Although a person in custody may give valid consent to a search,

see, e.g., Gray v. Commonwealth, 233 Va. 313, 327, 356 S.E.2d

157, 164 (1987), the trial court found that appellant did not
                             - 9 -
consent to the searches at issue.   Consequently, the searches

were valid only if they were based on probable cause.     We hold

that they were not.

     "Probable cause exists when the facts and circumstances

within the arresting officer's knowledge and of which he has

reasonable trustworthy information are sufficient in themselves

to warrant a man of reasonable caution in the belief that an

offense had been or is being committed."    Saunders v.

Commonwealth, 218 Va. 294, 300, 237 S.E.2d 150, 155 (1977).

Probable cause "must be based on more than speculation,

suspicion, or surmise that a crime might be in progress."

Alexander v. Commonwealth, 19 Va. App. 671, 674, 454 S.E.2d 39,

41 (1995); see also Grimstead, 12 Va. App. at 1069, 407 S.E.2d

at 49.    To determine whether probable cause exists for an arrest

or search, we examine the totality of the circumstances.      See,

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

(1998).

     Here, Corrigan testified that appellant was "complacent"

and cooperative and that he thought appellant might be under the

influence of something.   Appellant exhibited no furtive or

nervous behavior.   While appellant was being lawfully detained,

Detective Corrigan asked him if he had any guns or drugs.

Appellant responded, "No guns," which caused Detective Corrigan

to "think[] that [appellant] was saying, I do have drugs."

Corrigan asked appellant a second time whether he had any guns
                             - 10 -
or drugs, and appellant, "[w]ith his head[,] . . . indicated his

left side."   Corrigan then asked, "Is it in your pocket?", to

which appellant replied, "sunglasses."

     This exchange, coupled with the fact that appellant

appeared to have exited an apartment in which drugs frequently

were used in the company of another individual known to use

drugs, may have given Detective Corrigan reasonable suspicion to

believe that appellant had drugs in his possession.   However, it

was insufficient to provide Corrigan with probable cause to

search or arrest appellant for possession of illegal drugs.

See, e.g., Alabama v. White, 496 U.S. 325, 330, 110 S. Ct. 2412,

2416, 110 L. Ed. 2d 301 (1990) (in case involving informant's

tip, holding "[r]easonable suspicion is a less demanding

standard than probable cause not only in the sense that

reasonable suspicion can be established with information that is

different in quantity or content than that required to establish

probable cause, but also in the sense that reasonable suspicion

can arise from information that is less reliable than that

required to show probable cause").

     Next, even assuming the circumstances provided probable

cause to search appellant's pants pocket for drugs, the fruits

of Detective Corrigan's search of the pocket did not give him

probable cause to search beneath appellant's pants leg.

Although Corrigan's discovery of appellant's "lucky bullet" may

have aroused further concern that appellant might be carrying a
                             - 11 -
firearm, the circumstances provided no more than reasonable

suspicion justifying a pat down of appellant's legs and ankles,

an area which would also have been within the scope of the

initial pat down of appellant.   Those circumstances did not

provide Detective Corrigan with probable cause to conduct a

visual search beneath appellant's pants leg.   Only if Corrigan

had first conducted a pat down of that area and felt something

he believed could have been a weapon would his actions have been

reasonable.   See Craft, 30 F.3d at 1045 (in case involving

consent pat down, holding that, "[b]ecause the officer became

aware of the object's incriminating character before he lifted

Craft's pant leg, the officer was justified in lifting the pants

and seizing the contraband without a warrant" (emphasis added)).

     For these reasons, we hold the initial seizure and frisk of

appellant were reasonable.   Nevertheless, we conclude the facts

failed to support (1) the trial court's ruling that the drugs

would inevitably have been discovered in the course of

appellant's arrest on an outstanding warrant or (2) the

Commonwealth's alternate theory at trial that the officer

developed probable cause to search appellant's pocket and pants

leg for weapons or drugs.    Thus, we reverse appellant's

conviction and remand for further proceedings consistent with

this opinion if the Commonwealth be so advised.

                                            Reversed and remanded.


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