                    COURT OF APPEALS OF VIRGINIA


Present: Judges Coleman, Willis and Annunziata
Argued at Richmond, Virginia


JOHN ANTONIO WILSON
                                                  OPINION BY
v.   Record No. 1996-99-2                  JUDGE SAM W. COLEMAN III
                                               NOVEMBER 28, 2000
COMMONWEALTH OF VIRGINIA


           FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                     Margaret P. Spencer, Judge

           David P. Baugh for appellant.

           Thomas M. McKenna, Assistant Attorney General
           (Mark L. Earley, Attorney General, on brief),
           for appellee.


      John Antonio Wilson was convicted of distribution of

cocaine.   Wilson entered a conditional guilty plea, reserving the

right to appeal the trial court's denial of his motion to suppress

his post-arrest statements.   The sole issue on appeal is whether

the two-hour delay after Wilson was arrested and before he was

brought before a magistrate violated his Fourth Amendment right to

a prompt judicial determination of probable cause.    Finding no

error, we affirm.

                              BACKGROUND

     At approximately 7:15 p.m., Sergeant Christopher Preuss of

the Virginia Commonwealth University (VCU) Police Department was

conducting surveillance of an off-campus house, which was,

nonetheless, within the jurisdiction of the VCU police department.
Hidden from view and using a telescope, Preuss observed Wilson

sitting on the front stoop of his house.   An unidentified person

approached Wilson, and the two had a brief conversation.    The

person then handed Wilson some U.S. currency.   In turn, Wilson

handed the person an object, which he had cupped in his hands, and

some U.S. currency.

     After the transaction, the person walked away, but he was

apprehended a short distance from the scene by Officer Michael

O'Berry.   After giving the person his Miranda warnings, O'Berry

questioned the person and, when confronted, the person admitted he

had just purchased cocaine from Wilson and still possessed it.

Preuss and three other officers then went to Wilson's house and

arrested him for distribution of cocaine within one thousand feet

of an elementary school.   Wilson was given his Miranda warnings

and taken to the VCU police station.   Wilson made no incriminating

statements at the scene of the arrest.

     Preuss testified that while he was processing Wilson at the

VCU police station, Wilson made an inculpatory statement.   The

Commonwealth introduced evidence that Wilson stated:

           He was a drug user, used cocaine to combat
           depression. He said he did not sell drugs,
           he could give the police someone who sold
           weight, that he could get this person to
           sell to him.

                [He] further stated that all but $100
           of the $1,130 found on him incident to
           arrest belonged to his mother and that he
           was holding the money because she was sick.

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          He indicated that he had just been paid from
          his job at an automotive business where he
          worked 40 hours per week and earned $6.50 an
          hour.

     At the police station, the officers took "extraordinary

procedures to try to keep the alleged buyer and [Wilson] apart" so

that Wilson and the buyer could not confront each other.    After

the buyer was "processed," Wilson was "processed."   The processing

procedure included fingerprinting, photographs, securing the

evidence, and completing "numerous amounts of paperwork."    Preuss

estimated that he kept Wilson at the VCU police station

approximately an hour "processing" him before he was transported

to the Richmond Sheriff's Department and taken before a

magistrate.

     Preuss acknowledged that, in an attempt to secure a

confession while processing Wilson, he told Wilson that he had

observed Wilson selling drugs shortly before arresting him and

that the police had also arrested the buyer, who was in custody

and in possession of the drugs that Wilson had sold.   Preuss

further stated that he informed Wilson that Wilson could help

himself if he confessed to his involvement in the offense.

Although Wilson was required to be present for some of the booking

procedures, Preuss admitted that Wilson did not need to be present

while Preuss completed some of the paperwork.

     Prior to trial, Wilson moved to suppress his inculpatory

statements.   The trial court denied the motion.   Pursuant to Code

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§ 19.2-254, Wilson entered a conditional plea of guilty and

appealed the denial of his suppression motion.

                              ANALYSIS

     "In considering the trial court's denial of a motion to

suppress, the burden is on appellant to show that the court's

ruling constituted reversible error."    Robinson v. Commonwealth,

31 Va. App. 479, 483, 524 S.E.2d 171, 172 (2000) (citing McGee

v. Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261

(1997) (en banc)).   When we review a trial court's denial of a

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

favorable to . . . 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) (citing Commonwealth v. Holloway, 9 Va. App. 11,

20, 384 S.E.2d 99, 104 (1989)).

     "[T]he Fourth Amendment requires a judicial determination of

probable cause as a prerequisite to extended restraint of liberty

following arrest."   Gerstein v. Pugh, 420 U.S. 103, 114 (1975).

"[A] jurisdiction that provides judicial determinations of

probable cause within 48 hours of arrest will, as a general

matter, comply with the promptness requirement of Gerstein."

County of Riverside v. McLaughlin, 500 U.S. 44, 56 (1991).

However, a probable cause determination in a particular case

conducted within forty-eight hours "may nonetheless violate


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Gerstein, if the arrested individual can prove that his or her

probable cause determination was delayed unreasonably."     Id.

          Examples of unreasonable delay are delays
          for the purpose of gathering additional
          evidence to justify the arrest, a delay
          motivated by ill will against the arrested
          individual, or delay for delay's sake. In
          evaluating whether the delay in a particular
          case is unreasonable, however, courts must
          allow a substantial degree of flexibility.
          Courts cannot ignore the often unavoidable
          delays in transporting arrested persons from
          one facility to another, handling late-night
          bookings where no magistrate is readily
          available, obtaining the presence of an
          arresting officer who may be busy processing
          other suspects or securing the premises of
          an arrest, and other practical realities.

Id. at 56-57.

     We hold that the two-hour delay between the time Wilson was

arrested and the time he was brought before the magistrate for a

probable cause hearing was not unreasonable under the

circumstances.   Here, during the time Wilson was detained at the

VCU police department, the police officers completed the

necessary paperwork, fingerprinted and photographed Wilson,

packaged and secured the evidence, and called for a wagon to

transport Wilson from the VCU police station to the Richmond

Sheriff's Department.   Moreover, while the officers were

processing Wilson, they took "extraordinary procedures" to keep

Wilson and the buyer separated from one another.   Although

Preuss admitted that while completing the police paperwork and

processing procedures he questioned Wilson and made comments to

                             - 5 -
him in an effort to get Wilson to confess, Wilson has failed to

show that the two-hour delay was merely a "ruse" to gather

information to justify the arrest.    We do not confront a

situation where a discrete period of time was devoted to

interrogating Wilson to the exclusion of other booking or

processing procedures.   Preuss' questioning of Wilson took place

while he was photographing and fingerprinting Wilson, packaging

the evidence, or doing the other necessary paperwork before

transporting him to the magistrate.   Furthermore, Wilson has

failed to show that Preuss' questioning delayed Wilson's

presentment to the magistrate.

     Because Wilson has failed to show that the two-hour delay

in transporting him to the probable cause hearing was

unreasonable, the trial court did not err by denying Wilson's

motion to suppress his inculpatory statements.   We, therefore,

affirm the trial court's judgment.

                                                             Affirmed.




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