                   COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Moon, Judges Coleman and Bray
Argued at Norfolk, Virginia


COMMONWEALTH OF VIRGINIA
                                        MEMORANDUM OPINION * BY
v.        Record No. 0298-96-1         JUDGE SAM W. COLEMAN III
                                            JUNE 25, 1996
EDDIE D. JOHNSON


          FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                  Everett A. Martin, Jr., Judge
          Marla Graff Decker, Assistant Attorney
          General (James S. Gilmore, III, Attorney
          General, on brief), for appellant.

          Steven A. Mirman (Stowe & Stanton, P.C., on
          brief), for appellee.



     Eddie D. Johnson was indicted for possession of cocaine with

intent to distribute in violation of Code § 18.2-248.   Prior to

trial, the trial court granted Johnson's motion to suppress the

cocaine, and the Commonwealth appealed the court's ruling

pursuant to Code § 19.2-398(2).   The Commonwealth contends that

Johnson was not seized in violation of the Fourth Amendment

before he discarded and abandoned a "pill bottle" containing the

cocaine that was suppressed.   We hold that the initial encounter

between the defendant and the police was consensual and that the

police had probable cause to arrest the defendant when he

attempted to discard the pill bottle containing cocaine.

Accordingly, we reverse the trial court's ruling and remand the

     *
       Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
case for trial on its merits.

     On May 23, 1995, the Norfolk Police Department received a

tip from an anonymous caller that "two black males [were]

standing on the porch of 249 West 28th Street selling [crack

cocaine]."   The only description the caller gave of the men,

other than their race, "was a very basic clothing description."

This information was broadcast over the police radio, and

Officers David S. Barber and Harry D. Boone responded to the

reported location.   Officer Barber testified that the

neighborhood was known for drug activity and that he had made

previous narcotics arrests at the same address.
     When the officers arrived at the address, they observed two

black males, one of whom was the defendant, on the front porch.

The officers stated that the address is a boarding house and that

there is a no-trespassing sign at the front entrance.    Officer

Barber testified that he "knew quite a few of the people that

live there," and that he did not recognize either the defendant

or the other man as residents of the house.

     The officers approached the men who were on the porch and

asked if they lived at the house.   The men responded that they

did not.   Although the officers did not ask the men if they were

visiting the house, Officer Barber testified that the men were

not free to leave "because of the no-trespassing sign."   However,

the officer did not tell the defendant or his companion that they

were not free to leave.




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     The officers explained to the defendant that the police had

received a call reporting that persons were selling drugs at that

location and the officers asked the men if they could pat them

down for weapons.    Both men consented.   The defendant turned

around "and spread out in a position that [the police] commonly

use to search people."   Officer Barber asked the defendant if he

had any narcotics, but the defendant did not respond.

     Officer Barber proceeded to pat down the defendant, who was

wearing a t-shirt and shorts.   When Officer Barber "came around

to the front of the shorts, [he] could feel inside the shorts in

[the defendant's] groin area what appeared to [him] to be a pill

bottle or a film canister."   Officer Barber testified that, based

upon his prior experience, pill bottles were commonly used for

packaging cocaine in the neighborhood where the boarding house

was located.
     When Officer Barber touched the defendant's groin area, the

defendant pushed back from the porch railing and bumped into

Barber, knocking him slightly off balance.    Then, the defendant

reached into his shorts and removed a prescription pill bottle.

Officer Boone grabbed the defendant's arm, and the defendant

threw the bottle to the ground.   The defendant attempted to flee,

but was subdued by the officers after a lengthy struggle.    It was

later determined that the pill bottle the defendant discarded

contained cocaine.

     The trial court found that the anonymous tip did not provide




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the police with reasonable suspicion to conduct a Terry stop, and

that the police did not have probable cause to arrest the

defendant for trespassing because they did not determine whether

he was visiting someone at the boarding house.   In addition, the

court found that the defendant's consent to a pat down search was

limited to a search for weapons, that the defendant withdrew his

consent when Officer Barber searched his groin area, and that the

defendant was seized before he abandoned the pill bottle

containing the cocaine.
     When the Commonwealth appeals the trial court's ruling on a

motion to suppress, "[w]e view the evidence in a light most

favorable to [the defendant], 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).   The trial court's decision will not be

disturbed on appeal "unless it is plainly wrong."   Id.

     Here, credible evidence supports the trial court's finding

that the police officers did not have reasonable suspicion to

conduct a Terry stop or probable cause to arrest the defendant
for trespassing.   Likewise, the evidence, viewed in the light

most favorable to the defendant, supports the court's findings as

to the scope and withdrawal of the defendant's consent to a pat

down search, and the abandonment of the pill bottle.

Nevertheless, the decision granting the motion to suppress was

plainly wrong because the evidence shows that the defendant was




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not seized for Fourth Amendment purposes until after he removed

the pill bottle from his shorts and began to discard it, and at

that point, probable cause existed for the police officer to make

an arrest.

     As the defendant concedes, his initial encounter with

Officers Barber and Boone was consensual.   The officers

approached the defendant and his companion and asked them whether

they lived in the boarding house.   The officers then explained

that they were investigating a report of drug dealing, but the

officers did not specifically identify the defendant or the

companion as suspects.   When asked to submit to a search for

weapons, the men consented and stated that "they had nothing to

hide."   In fact, the defendant not only consented to the search,

but grabbed the porch railing "and spread out in a position that

[the police] commonly use to search people."   See Camden v.

Commonwealth, 17 Va. App. 725, 727, 441 S.E.2d 38, 39 (1994)

(finding that the accused "not only agreed to [the officer's]

request for a weapons pat down, but . . . also began removing

items from his pockets").   Although the police officers testified

that they were investigating the defendant for trespassing and

that he was not free to leave, they did not communicate this to

the defendant.   Because the relevant inquiry is whether "in view

of all of the circumstances surrounding the incident, a

reasonable person would have believed that he was not free to

leave," United States v. Mendenhall, 446 U.S. 544, 554, 100



                               - 5 -
S. Ct. 1870, 1877, 64 L.Ed.2d 497 (1980), the unexpressed

subjective intent of the officers was irrelevant for the purpose

of determining whether the Fourth Amendment was implicated.        Id.

at 554 n.6, 100 S. Ct. at 1877 n.6; see also United States v.

Archer, 840 F.2d 567, 572 (8th Cir.), cert. denied, 488 U.S. 941,

109 S. Ct. 365, 102 L.Ed.2d 354 (1988).

     Officer Barber did not have authority or consent to remove

the object that he felt in the defendant's groin area.      The scope

of the consensual search was limited to a search for weapons and

Officer Barber acknowledged that the object could not have been a

weapon.     See Harris v. Commonwealth, 241 Va. 146, 151-52, 400

S.E.2d 191, 194-95 (1991); Camden, 17 Va. App. at 727, 441 S.E.2d

at 39-40.    Nevertheless, Officer Barber did not exceed the scope

of the consensual search by searching the defendant's groin area.

It is "objectively reasonable" for a police officer to believe

that permission to conduct a pat down search for weapons includes

permission to pat down the groin area.     See Grinton v.
Commonwealth, 14 Va. App. 846, 851, 419 S.E.2d 860, 862 (1992).

Barber testified that based upon his experience as a police

officer, he knew that people hid a variety of items in their

groin area.    Furthermore, the evidence does not indicate that

Officer Barber expanded the scope of the search after he felt the

object in the defendant's groin area.

     The defendant reacted immediately to Officer Barber's search

of his groin area by pushing himself away from the railing and




                                 - 6 -
bumping into Barber, removing the pill bottle from his shorts,

and attempting to throw the bottle to the ground.     At that point,

Officer Boone grabbed the defendant's arm and a lengthy struggle

ensued.    Therefore, the dispositive question is whether the

officers had probable cause to arrest the defendant when Officer

Boone grabbed his arm.

     In determining whether there was probable cause to make an

arrest, "the test of constitutional validity 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)), cert. denied, 488 U.S. 985, 109 S. Ct. 541, 102

L.Ed.2d 571 (1988).   Here, Officer Barber did not have probable

cause to arrest the defendant when he felt what appeared to be a

film canister or pill bottle in the defendant's shorts because

film canisters and pill bottles have legitimate uses.      Harris,

241 Va. at 154, 400 S.E.2d at 196.      Nevertheless, Officer Barber

would have been justified in questioning the defendant about the

object he felt in the shorts because he was aware that the common

practice in that neighborhood was to package cocaine in pill

bottles.   Before Officer Barber could investigate further,

however, the defendant grabbed the bottle and attempted to

discard it.    See Lawson v. Commonwealth, 217 Va. 354, 357-58, 228




                                - 7 -
S.E.2d 685, 687 (1976).

     In Lawson, the police officer approached the vehicle in

which Lawson was a passenger to investigate an anonymous report

of drug dealing.    Lawson locked the passenger door as the officer

approached, and the officer witnessed Lawson and the driver

exchange an envelope that was later discarded on the floor of the

passenger's side of the vehicle.     Id. at 357, 228 S.E.2d at 687.

The Supreme Court held that the officer had "articulable reason"

to investigate the anonymous report and that the furtive gestures

he witnessed gave him probable cause to seize the envelope and

arrest Lawson.     Id. at 357-58, 228 S.E.2d 687-88; see also Hollis

v. Commonwealth, 216 Va. 874, 876, 223 S.E.2d 887, 889 (1976).

Likewise, the furtive gestures that Officers Barber and Boone

witnessed prior to seizing the defendant, combined with the

anonymous report of drug dealing, the high incidence of drug

activity in the neighborhood, and Officer Barber's pat down

search of the defendant's groin area, were sufficient to warrant

a reasonable person in believing that an offense was being

committed.

     Because the police officers had probable cause to arrest the

defendant at the time he was seized, the trial court erred by

granting the motion to suppress the cocaine found in the pill

bottle.   Accordingly, we reverse the trial court's ruling and

remand the case for trial.
                                              Reversed and remanded.




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