                      COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Felton and Kelsey
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                         MEMORANDUM OPINION * BY
v.   Record No. 0666-03-1              JUDGE WALTER S. FELTON, JR.
                                            AUGUST 12, 2003
EDWIN LOUIS GREENE, JR.


          FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                    Wilford Taylor, Jr., Judge

          Donald E. Jeffrey, III, Assistant Attorney
          General (Jerry W. Kilgore, Attorney General,
          on brief), for appellant.

          No brief or argument for appellee.


     Pursuant to Code § 19.2-398, the Commonwealth appeals the

judgment of the trial court granting Edwin Greene's motion to

suppress evidence.   The Commonwealth contends that Officer

Christopher Hake possessed probable cause to search the vehicle in

which Greene was a passenger and all containers found therein

after Officer Hake observed marijuana and a concealed weapon in

plain view within the vehicle.   As a result, the Commonwealth

argues no Fourth Amendment violation occurred and that the trial

court erred in granting Greene's motion to suppress evidence.    For

the following reasons, we reverse the judgment of the trial court.



     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
                           I.   BACKGROUND

     On November 29, 2002, at approximately 3:00 a.m., Officer

Hake stopped a vehicle he observed running a red light.     Upon

confronting the driver, he noted an open beer bottle in the cup

holder near the driver.   He also observed Greene in the

passenger seat, who appeared to be "either passed out or

asleep."    Officer Hake asked the driver for his license and

vehicle registration.    When the driver opened the glove box, a

small bag of marijuana "fell onto the door of the glove box

itself and sat there."    The driver attempted to conceal it with

his arm.    He grabbed his vehicle registration, quickly closed

the glove box, and handed his registration to Officer Hake.

     A second officer arrived to backup Officer Hake.      At that

time Officer Hake moved to the passenger side of the vehicle,

opened the door, and asked Greene to step out of the vehicle so

that he could retrieve the marijuana from the glove box.     Greene

complied.   As he was getting out of the car, the movement of his

feet pulled away a grocery bag and some clothing located on the

floorboard, revealing a semiautomatic handgun.   Greene was

directed to place his hands on his head and remain where he

stood.   Officer Hake then escorted Greene to a police car.

     Officer Hake returned to the stopped vehicle.    He retrieved

the handgun and marijuana and conducted a further search of the

vehicle to determine whether other narcotics or weapons were

there.   During the search, Officer Hake found several pieces of

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clothing located in the backseat.      One of those items was a

coat.       Officer Hake reached into the coat's pockets and

discovered a cigar tube that was cut in half and wrapped in

black electrical tape.      He opened the cigar tube and discovered

a white residue that was later determined to be cocaine. 1

        Following the search, Officer Hake gave Miranda warnings to

the driver of the vehicle and began questioning him about the

handgun and marijuana. 2     As Officer Hake spoke with the driver,

Greene stated that he was cold.      Officer Hake retrieved the coat

that had contained the cigar tube.         When Greene acknowledged

that the coat was his, Officer Hake gave him Miranda warnings,

and began questioning him about the cigar tube found in the

coat. 3

        On March 5, 2003, a suppression hearing was held.      Greene

contended that he had a reasonable expectation of privacy in the

coat, which was violated.      He also contended that because the

nature of the contraband in the cigar tube was not readily

apparent without further examination by the officer, his opening


        1
       Officer Hake testified at trial that when he discovered the
cigar tube he suspected it contained crack cocaine. He stated
that "[o]ver the years, in working with the Hampton Police
Division by encountering individuals on the street, I've noticed
they've carried cigar tubes to carry crack cocaine and other
paraphernalia such as marijuana."
        2
       The driver of the vehicle admitted possession of the
marijuana and the handgun.
        3
       No issue as to the admissibility of any responses
resulting from the questioning is presented in this appeal.

                                   - 3 -
of the cigar tube was an unlawful search.    The Commonwealth

asserts that once Officer Hake located the marijuana and

handgun, which the driver admitted were his, in plain view

within the vehicle, he had probable cause to search the entire

interior compartment of the vehicle.     The trial court granted

Greene's motion to suppress the evidence.

                           II.    ANALYSIS

     In reviewing a pretrial appeal, we "view the evidence in

[the] light most favorable to [the defendant], the prevailing

party below, and we grant all reasonable inferences fairly

deducible from that evidence.    We will not reverse the trial

judge's decision unless it is plainly wrong."     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)).

     The Commonwealth argues on appeal that the trial court

erred in granting Greene's motion to suppress.    It contends that

the cocaine found inside Greene's coat was obtained in the

course of a lawful, warrantless search of the vehicle in which

the coat was located.   We agree.

          "Ultimate questions of reasonable suspicion
          and probable cause to make a warrantless
          search" involve questions of both law and
          fact and are reviewed de novo on appeal.
          Ornelas v. United States, 517 U.S. 690,
          [691], 116 S. Ct. 1657, 1659, 134 L. Ed. 2d
          911 (1996). In performing such analysis, we
          are bound by the trial court's findings of
          historical fact unless "plainly wrong" or

                                 - 4 -
          without evidence to support them and we give
          due weight to the inferences drawn from
          those facts by resident judges and local law
          enforcement officers. Id. at [699], 116
          S. Ct. at 1663. We analyze a trial judge's
          determination whether the Fourth Amendment
          was implicated by applying de novo our own
          legal analysis of whether based on those
          facts a seizure occurred.

McGee v. Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259,

261 (1997) (footnote omitted).

     In Wyoming v. Houghton, 526 U.S. 295 (1999), police located

a syringe in the shirt pocket of the male driver, David Young.

Responding to the officer's questions, Young indicated that he

used the syringe to take drugs.    The backup officers

subsequently ordered Young's girlfriend and Sandra Houghton out

of the vehicle.   One officer began searching the vehicle for

contraband based on Young's statement.     In the backseat, he

found a purse that Houghton identified as hers.     The officer

searched the purse and located illegal drugs and drug

paraphernalia.    In reversing the Wyoming Supreme Court, the

United States Supreme Court found no Fourth Amendment violation

in the search of the purse.   It held that "police officers with

probable cause to search a car may inspect passengers'

belongings found in the car that are capable of concealing the

object of the search."    Id. at 307.    See also Westcott v.

Commonwealth, 216 Va. 123, 125-26, 216 S.E.2d 60, 63 (1975).

     In the case before us, Officer Hake discovered in plain

view a handgun and marijuana.    Unquestionably, and conceded by

                                 - 5 -
Greene, Officer Hake possessed probable cause to search the

vehicle for additional weapons and illegal drugs.    However,

Greene argues that Officer Hake was required to limit his search

to other items in plain view and not to invade closed containers

that were not immediately recognized to be contraband.    He

insists that the officer had no particularized suspicion in

regard to the coat or the cigar tube to justify the search.

Greene's reasoning is misplaced.

     Possessing probable cause resulting from the discovery of a

handgun and marijuana in plain view in the vehicle, Officer Hake

was permitted to inspect all personal belongings and containers

in the vehicle that were capable of concealing illegal drugs and

weapons.   Houghton, 526 U.S. at 307.   Officer Hake found a coat

in the backseat of the vehicle.    The coat was certainly capable

of concealing additional illegal drugs or weapons.

Consequently, there was no Fourth Amendment violation when

Officer Hake searched Greene's coat.

     Like the coat, the cigar tube was also capable of

concealing illegal drugs.   Officer Hake testified that when he

discovered the cigar tube he suspected it contained crack cocaine.

He stated that "[o]ver the years, in working with the Hampton

Police Division by encountering individuals on the street, I've

noticed they've carried cigar tubes to carry crack cocaine and

other paraphernalia such as marijuana."   As a result, the search

of the cigar tube was lawful.

                                - 6 -
     With probable cause present, and considering the

characteristics of the items sought, there was no Fourth Amendment

violation committed by Officer Hake when he searched Greene's coat

and the cigar tube found therein.   Consequently, the trial court

erred in granting Greene's motion to suppress evidence.

     The judgment of the trial court is reversed.

                                                          Reversed.




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