                   COURT OF APPEALS OF VIRGINIA


Present: Judges Fitzpatrick, Overton and Senior Judge Hodges
Argued at Salem, Virginia


COMMONWEALTH OF VIRGINIA

v.       Record No. 2791-95-3             MEMORANDUM OPINION * BY
                                       JUDGE JOHANNA L. FITZPATRICK
RICHARD EMMANUEL BROGGIN, JR.                   MAY 7, 1996


          FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
                      Richard S. Miller, Judge
           Kathleen B. Martin, Assistant Attorney
           General (James S. Gilmore, III, Attorney
           General, on brief), for appellant.

           Joseph A. Sanzone (Joseph A. Sanzone
           Associates, on brief), for appellee.



     Richard Emmanuel Broggin, Jr. (appellee) was indicted for

possession of cocaine with intent to distribute in violation of

Code § 18.2-248.   Appellee filed a motion to suppress the

cocaine, arguing that the police officer had no probable cause to

arrest him, searched him without a search warrant, and did not

act under exigent circumstances.      The trial court granted the

suppression motion, and the Commonwealth appeals that ruling
                                  1
pursuant to Code § 19.2-398(2).       On appeal, the Commonwealth
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
     1
      Code § 19.2-398 provides, in pertinent part, that:

           A petition for appeal from a circuit court
           may be taken by the Commonwealth only in
           felony cases . . . from . . . (2) [a]n order
           of a circuit court prohibiting the use of
           certain evidence at trial on the grounds such
           evidence was obtained in violation of the
           provisions of the Fourth, Fifth or Sixth
argues that:   (1) the officer had probable cause to arrest

appellee and search him incident to the arrest; and (2) even if

the officer lacked probable cause, exigent circumstances

justified the warrantless search.     For the reasons that follow,

we affirm the trial court.

     In June 1995, Investigator W. K. Dance (Dance) of the

Lynchburg Police Department received information from a reliable

confidential informant who, in the past, had provided Dance with

information that led to fifteen to twenty arrests and

convictions.   The informant told Dance that appellee had been

selling cocaine at the Aerofin Corporation plant in Lynchburg

every Thursday since November 1994 and that the informant had

seen appellee sell cocaine.   On the morning of Thursday, June 8,

1995, the informant called Dance and told him that:    (1)

appellee, an employee at the Aerofin plant, would arrive at the

plant that day just before 3:30 p.m.; (2) he would be driving a

dark-colored Suzuki motorcycle; (3) he would have cocaine to sell

inside the plant; and (4) he would sell cocaine to his co-workers

after they cashed their paychecks during their dinner break at

8:00 p.m.   The informant had also called Dance with this

information four to five days before June 8.
     Dance did not obtain an arrest or search warrant prior to

going to the plant.   On June 8, Dance and two police officers saw

            Amendments to the Constitution of the United
            States or Article I, Sections 8, 10 or 11 of
            the Constitution of Virginia.



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appellee arrive at work at 3:25 p.m. on a black Suzuki

motorcycle.    Dance approached appellee as he entered the plant

and asked "if he had anything."    Appellee said no.   Dance then

searched appellee's coat and found three plastic bags containing

crack cocaine.    After finding the cocaine, Dance arrested

appellee.

     Appellee filed a pretrial motion to suppress the cocaine

seized from his coat.    On November 21, 1995, the trial court

granted the suppression motion and stated as follows:
          [T]he Court is going to sustain and grant the
          motion to suppress because I think . . . in
          this case that even though the Commonwealth
          established the reliability of the informant,
          . . . there was an opportunity to go and get
          the search warrant . . . .

                  The case law authorizes a temporary,
             reasonable detention of a defendant under
             these circumstances. There is nothing in the
             record to indicate why the officer did not do
             that. He had the information from the
             informant at least prior to the search in
             this case. And I think that there were no
             ex[i]gent circumstances shown in the record
             to justify the search.


     In reviewing a trial court's ruling on a suppression motion,

this Court considers the evidence in the "light most favorable to

. . . the prevailing party below," the appellee in this instance,

and the decision will only be disturbed if plainly wrong.

Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47,

48 (1991).

     "'[T]he test of constitutional validity [of a warrantless

search] is whether at the moment of arrest the arresting officer



                                   3
had knowledge of sufficient facts and circumstances to warrant a

reasonable man in believing that an offense has been committed.'"

 Hardy v. Commonwealth, 11 Va. App. 433, 434-35, 399 S.E.2d 27,

28 (1990) (quoting DePriest v. Commonwealth, 4 Va. App. 577, 583-

84, 359 S.E.2d 540, 543 (1987), cert. denied, 488 U.S. 985

(1988)).

"Probable cause to arrest must exist exclusive of the incident

search."   Carter v. Commonwealth, 9 Va. App. 310, 312, 387 S.E.2d

505, 506 (1990).   "The information provided by [an] informant

must describe not just easily obtained facts, but future third

party actions not easily predicted."    Hardy, 11 Va. App. at 435,

399 S.E.2d at 28 (citing Illinois v. Gates, 462 U.S. 213 (1983)).

     Viewing the evidence in the light most favorable to

appellee, we hold that the totality of circumstances did not

support Dance's search of appellee.    When Dance went to the

plant, he verified only that appellee arrived at the plant where

he worked at a certain time.   Nothing about appellee's behavior

indicated that he had drugs on his person, and Dance did not

pause to observe appellee's actions before stopping him.   Thus,

Dance did not have probable cause to arrest appellee or to search

him for drugs.

     Additionally, no exigent circumstances supported Dance's

search of appellee.   "'Where there are exigent circumstances in

which police action literally must be "now or never" to preserve

the evidence of the crime, it is reasonable to permit action



                                 4
without prior judicial evaluation.'"    Wright v. Commonwealth, 222

Va. 188, 193, 278 S.E.2d 849, 853 (1981).    In Wright, the police

officer received the tip at 6:00 p.m., telling him that a drug

delivery would be made at 6:30 p.m.    Id.   The Supreme Court of

Virginia held that "[i]f he was to make the necessary

investigation, intercept the suspects while the reported crime

was in progress, and preserve the evidence of that crime, he had

to act 'now or never.'"   Id.   The instant case is distinguishable

from Wright in that Dance received the informant's tip several
hours before the crime was to occur and had sufficient time to

seek a search warrant.

     Accordingly, the decision of the trial court is affirmed.

                                                Affirmed.




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