                                COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Kelsey and Beales
Argued at Chesapeake, Virginia


PERKINS JONES
                                                                MEMORANDUM OPINION* BY
v.      Record No. 2515-05-1                                    JUDGE RANDOLPH A. BEALES
                                                                    JANUARY 30, 2007
COMMONWEALTH OF VIRGINIA


                 FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
                                Johnny E. Morrison, Judge

                  Sonya Weaver Roots (Weaver Law Offices, on brief), for appellant.

                  Michael T. Judge, Senior Assistant Attorney General (Robert F.
                  McDonnell, Attorney General, on brief), for appellee.


        Perkins Jones (appellant) was convicted of misdemeanor obstruction of justice under Code

§ 18.2-460(A). He appeals this conviction, arguing first that the officer did not have probable cause

to arrest him and second that the evidence was insufficient to support the conviction. Rather than

provide a transcript of the proceedings in the circuit court, appellant has filed a statement of facts

pursuant to Rule 5A:8(c).

                                             I. Background

        On May 23, 2005, Officer Crutcher was in the Portsmouth General District Court when

that court called a case involving appellant, who did not appear. In the officer’s presence, the

court orally ordered that a capias be issued for appellant’s arrest. However, the capias was never

formally issued.




        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       The next day, Officer Crutcher spotted the appellant outside a home that had a reputation

for being “drug infested.” He watched appellant for fifteen minutes and then approached. The

officer never saw appellant with or near anyone else, although appellant claimed someone was

standing with him. Officer Crutcher arrested appellant by grabbing his left hand and attempting

to put handcuffs on him. As the officer was arresting him, appellant put something in his mouth.

Officer Crutcher, based on his twelve years with the police department and prior narcotics

arrests, believed the “something” was crack cocaine. The officer told appellant to spit out the

item, but appellant swallowed it instead.

       When Officer Crutcher checked with dispatch, he discovered that the capias was not

issued. He then arrested appellant for obstruction of justice.

                                    II. Probable Cause for Arrest

       Appellant argues that the officer did not see him commit a misdemeanor on May 24,

2005, so he did not have authority under Code § 19.2-81 to arrest him. Code § 19.2-81 states,

“Such officers may arrest, without a warrant, any person who commits any crime in the presence

of the officer and any person whom he has reasonable grounds or probable cause to suspect of

having committed a felony not in his presence.” The Commonwealth argues that Officer

Crutcher had probable cause to arrest appellant based on his observations in the courtroom.1

       While appellant did not commit a crime during the time that Officer Crutcher was

observing him on May 24, 2005, the officer did observe that appellant committed a crime the

previous day. On May 23, 2005, Officer Crutcher was in the courtroom when appellant,

although ordered to do so, did not appear before the general district court. The officer heard the

judge orally order that a capias be issued.




       1
           The parties agree that a valid arrest warrant did not exist on May 24, 2005.
                                                  -2-
       The officer had sufficient probable cause to arrest appellant and had authority to arrest

him. Failure to appear is a crime in Virginia. See Code §§ 19.2-74, 19.2-128. Whether or not

the evidence would have been sufficient to convict appellant of failure to appear is irrelevant, as

long as the officer had probable cause for the arrest:

               An officer has the duty to arrest a person who commits a
               misdemeanor in his presence, even though the officer has no arrest
               warrant. And an arrest, though warrantless, is valid where the
               officer had probable cause to believe that a misdemeanor was
               committed in his presence, even though the action he observed did
               not in fact constitute a misdemeanor.

Yeatts v. Minton, 211 Va. 402, 405, 177 S.E.2d 646, 648 (1970) (citation omitted). Here, the

officer had sufficient information, based on his own observation and on the pronouncement of

the general district court judge, to believe appellant had committed a misdemeanor in his

presence, i.e., he failed to appear for court. Under Code § 19.2-81, Officer Crutcher had

authority to arrest appellant.

                                          III. Sufficiency

       Appellant argues in his brief that the evidence was not sufficient to prove he

“obstruct[ed] Crutcher in the performance of his duties nor did he fail to cease any obstruction.”2


       2
         The Commonwealth argues on brief that “Jones[’s] ‘no obstruction’ argument is
defaulted because at trial he did not argue his actions did not obstruct the officer by force or
resistance.” According to the statement of facts, however, appellant’s argument to the trial court
was as follows:

               The defendant stated again that there was no evidence of
               obstruction of justice. . . . Again, the defendant stated that the
               officer did not observe any evidence that the defendant possessed
               any narcotics. . . . There was no basis for the officer to believe that
               the item he saw go into the defendant’s mouth was crack cocaine
               especially since the officer admitted that the item could have been
               rock candy.

While the argument is not phrased exactly the same on appeal, the essentials of the argument are
the same -- that appellant did not impede Officer Crutcher because appellant had no drugs on
him and, therefore, the officer had nothing to investigate.
                                                -3-
See also Code § 18.2-460(A). Specifically, he contends that, as nothing suggested appellant was

engaged in drug activity, he did not obstruct the officer by placing an item in his mouth while the

officer was arresting him. In reviewing appellant’s claim that the evidence was insufficient to

support a conviction, we consider the record in the light most favorable to the Commonwealth.

See Thomas v. Commonwealth, 44 Va. App. 741, 747, 607 S.E.2d 738, 740-41, aff’d on reh’g

en banc, 45 Va. App. 811, 613 S.E.2d 870 (2005).

         Appellant refers in his argument to a federal case involving a 42 U.S.C. § 1983 claim,

Rogers v. Pendleton, 249 F.3d 279, 291-92 (4th Cir. 2001). In that case, the Fourth Circuit found

Rogers did not violate Virginia’s obstruction law when he stood in front of the officer who

wanted to search the grounds around his home. The court pointed out that “[Officer] Pendleton

also testified that he simply stepped around Rogers without difficulty and then stood without

interference for a period of time while observing Rogers speaking to [Officer] Vinyard.” Id. at

291. Similarly, in Ruckman v. Commonwealth, 28 Va. App. 428, 505 S.E.2d 388 (1998), this

Court found that Ruckman did not obstruct justice when he simply could not remember

information that would have helped the police. In that case, the defendant did not intend to

impede an investigation – he simply could not help the investigation. Both cases suggest that

passive or unintentional behavior does not constitute obstruction.

         Here, in contrast to those two cases, appellant took an affirmative action by placing an

item into his mouth while the officer tried to arrest him. Appellant then refused to spit out the

suspected narcotics that he put into his mouth and actually swallowed the item.3 These actions

taken together were not unintentional or passive. Appellant clearly wanted to prevent the officer

from investigating and collecting the item, and he was successful. Whether the evidence proved



         3
             Appellant does not argue any Fourth Amendment issues regarding a search of his
mouth.
                                                 -4-
that the item was an illegal substance is irrelevant. The officer was performing his duty,

arresting appellant, when appellant decided to ingest an item in one of the hands that the officer

was trying to put in handcuffs. This behavior of appellant, and then his refusal to spit the item

out, obstructed the officer who was performing his duty.

       These circumstances are comparable to the facts in United States v. Bedford, 446 F.3d

1320, 1322 (10th Cir. 2006), where the Tenth Circuit upheld an enhancement under the federal

sentencing guidelines based on Bedford’s “obstruction of the administration of justice.” After

his friend purchased some cocaine from an undercover policeman, Bedford swallowed some of

the drug as the police were making a traffic stop of their vehicle. Id. The court found, “Bedford

succeeded in swallowing the cocaine base, at a time when the police had no knowledge that he

was in possession of incriminating evidence” and found he took this act “consciously, rather than

spontaneously or reflexively, with the purpose of obstructing justice.” Id. at 1325. Likewise, in

Mullins v. State, 717 N.E.2d 902 (Ind. Ct. App. 1999), the Indiana Court of Appeals upheld a

conviction for obstruction of justice based on facts very similar to the situation here.4 Mullins

was sitting in a car that was parked in front of a known drug house. Id. at 903. He was talking to

a woman, and the woman was observed dropping “a metal object that looked like a broken

antenna.” Id. When the officer approached, Mullins put a substance “which appeared to be

crack cocaine into his mouth and chew[ed].” Id. Mullins refused to spit the item out and pushed

the officer away. Id. at 904. The court held, “It is clear that Mullins’[s] actions in refusing to

spit the substance out of his mouth after being ordered to do so, and pushing Officer Doughty

away” were sufficient to support the conviction. Id.




       4
        The Indiana statute outlaws destruction of an item “with intent to prevent it from being
produced or used as evidence in any official proceeding or investigation.” Ind. Code
§ 35-44-3-4(a)(3).
                                               -5-
       Here, appellant put an item that looked like crack cocaine into his mouth, while the

officer was arresting him and while standing in front of a reputed drug house that was also

appellant’s former home. Appellant did not keep the item in his mouth. Instead, and despite the

officer’s instructions to spit the item out, appellant swallowed it. By so disobeying the officer’s

instructions, he purposefully destroyed the item so that the officer could not conclude the

investigation. Therefore, based on the totality of the circumstances, appellant is guilty of

obstruction of justice.

                                           IV. Conclusion

       We find the officer had probable cause to arrest appellant, and the evidence was sufficient to

convict appellant of obstruction of justice. We, therefore, affirm his conviction.

                                                                                           Affirmed.




                                                 -6-
