                              COURT OF APPEALS OF VIRGINIA


Present: Judges Humphreys, Clements and Kelsey
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                                                MEMORANDUM OPINION* BY
v.     Record No. 1672-03-2                                    JUDGE ROBERT J. HUMPHREYS
                                                                     JANUARY 6, 2004
JASON IMMANUEL COLEMAN


                 FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
                               Herbert C. Gill, Jr., Judge

               Steven A. Witmer, Assistant Attorney General (Jerry W. Kilgore,
               Attorney General, on brief), for appellant.

               John G. LaFratta (Rhonda L. Earhart; Main Street Law, on brief), for
               appellee.


       The Commonwealth appeals a decision of the trial court, pursuant to Code § 19.2-398,

suppressing evidence pertaining to Jason I. Coleman’s indictment for possession of cocaine with

intent to distribute, in violation of Code § 18.2-248 (an “Unclassified Felony”).1 The

Commonwealth argues the trial court erred in finding that police lacked the requisite probable cause

to lawfully arrest Coleman. For the reasons that follow, we reverse the trial court’s ruling and

remand for further proceedings consistent with this opinion.




       *
          Pursuant to Code § 17.1-413, this opinion is not designated for publication. Moreover,
as this opinion has no precedential value, we recite only those facts necessary to our holding.
       1
          Coleman was also charged with a misdemeanor offense of driving on a suspended
license, in violation of Code § 46.2-301.
                                            I. Background

       When addressing an allegation of error arising from a ruling on a motion to suppress, we

review the evidence in the light most favorable to the party prevailing below, together with all

reasonable inferences that may be drawn. See Smith v. Commonwealth, 41 Va. App. ___, ___

S.E.2d ___ (Nov. 25, 2003). The burden to establish that the denial of the motion to suppress

constituted reversible error rests with the appellant. See Fore v. Commonwealth, 220 Va. 1007,

1010, 265 S.E.2d 729, 731 (1980).

       The relevant facts in this case are not in dispute. On September 26, 2002, at approximately

10:10 p.m., Detective D.G. Henderson, of the Chesterfield County Police Department, was

conducting surveillance of the Par Three Motel in Chesterfield County. He and other officers in his

unit were “getting ready to set up a controlled buy in there and do a takedown.”

       Detective Henderson observed a black Chevy Caprice drive into the parking lot of the motel

shortly after he arrived. The driver of the car turned the headlights off immediately after entering

the parking lot, and drove to the building near the rental office. Henderson later learned that

Coleman was the driver of that car. Rodney Goodwin was Coleman’s passenger.

       Detective Henderson saw Coleman and Goodwin get out of the car and enter one of the

motel rooms. He then saw a female, along with a “couple other subjects,” walk across the parking

lot and enter the same room.

       Approximately three minutes later, Henderson observed Coleman and Goodwin leave the

room and get back into the Chevy Caprice. Coleman started the car, drove out of the parking lot,

and traveled “southbound on Jeff Davis Highway.” Detective Henderson followed in his unmarked

patrol car and contacted “the other units,” advising them of what he had observed.

       Approximately “a minute” later, Detective Henderson saw Coleman “pull into [a] Pilot Gas

Station” and park next to a pay phone. The Pilot Gas Station was located in “Colonial Heights,”
                                                 -2-
just outside of Chesterfield County.2 A male, who Detective Henderson later learned was Mark

Shiers, was standing next to the gas station pay phone. Henderson saw Goodwin get out of the car

and walk across the parking lot. He then saw Shiers get into the car and close the door. Detective

Henderson observed Coleman and Shiers engage in “what appeared to be [a] hand-to-hand

exchange.”

        At that point, Detective Henderson and the other units that had arrived approached the car

on foot. One of the officers, “Officer Gotsy,” observed “some U.S. currency in one [of Coleman’s]

hand[s] and some crack cocaine in another of [Coleman’s] hands.” Officer Gotsy “communicated”

this information to Detective Henderson. The officers then ordered Coleman out of the car. Upon

searching Coleman, the officers found two twenty dollar bills in Coleman’s pants pockets and a

cellular phone. They found a five dollar bill and a one dollar bill in the “seat” of the car.

        Detective Henderson placed Coleman under arrest for “possession of cocaine” and read him

his Miranda rights. Coleman then told Henderson that he had “throw[n] cocaine underneath the

[car].” Coleman stated that it was “around 3 grams.” Coleman next “admitted to going to the Par

Three Motel and selling $20 worth of cocaine. He stated he did not sell any cocaine to [Shiers]. He

further stated that he was having hard times because no one wants to hire him. And he stated that

his past is following him.”

        A Chesterfield County grand jury subsequently indicted Coleman for possession of cocaine

with intent to distribute, in violation of Code § 18.2-248. The indictment alleged that Coleman

engaged in the unlawful conduct “on or about, September 26, 2002” in the “County of

Chesterfield.”




        2
         The Commonwealth stipulated that the Pilot Gas Station was “more than 300 yards
outside of [Chesterfield County].”
                                                  -3-
        During the hearing on Coleman’s motion to suppress, Henderson testified that he had “been

involved in narcotics investigation” for “[t]hree[-]and[-]a[-]half year[s].” He stated he had made

“[h]undreds of drug arrests.” Detective Henderson testified that the activity Coleman engaged in at

the gas station “raise[d]” his suspicions that a drug transaction was occurring at that time.

Henderson agreed that he did not observe any crime at the Par Three Motel.

        Coleman argued this evidence established that Detective Henderson observed no crime and,

therefore, had no “probable cause” “to stop” Coleman until Henderson followed Coleman “outside

of [Henderson’s] jurisdiction.” The Commonwealth responded

                it may very well be illegal for a proper arrest, an arrest in violation
                of state code. But no evidence derived therefrom it [sic] would be
                suppressed. The exclusionary rule works only as a remedy to
                violations of the [sic] constitutional import . . . . But there is no
                constitutional violation. Because the officers, whether you call
                them citizens at that point or police officers, they observed conduct
                that gave them probable cause to believe that a felony offense was
                occurring. . . . [T]hat confession was lawfully obtained in the
                course of the investigation to [sic] a Colonial Heights crime, to an
                offense there.

        After reviewing briefs3 filed by the parties, the trial court sustained Coleman’s motion. The

Commonwealth, thereafter, filed a motion to vacate the suppression order, arguing that the trial

court failed to “adequately state the basis for the Court’s decision.” The Commonwealth contended

this failure would inhibit its efforts to “perfect[] an appeal.” The trial court vacated the order, then

later sustained Coleman’s motion to suppress once again, explicitly “adopting” Coleman’s

“argument,” “on 4th amendment [sic] grounds,” that:

                there was no probable cause to arrest [Coleman] for distribution of
                cocaine in Chesterfield County; that had they made an arrest for
                distribution or possession of cocaine in Colonial Heights, though
                that would have been a statutory violation, the case law says the


        3
         In his brief before the trial court, Coleman also argued that his confession was not made
freely and voluntarily.
                                                  -4-
               statutory violation does not bring into play the fruits of the
               poisonous tree argument.

               But in this case, since the probable cause is that he possessed
               cocaine at a convenience store in Colonial Heights, there was
               never probable cause developed for distribution in Chesterfield.
               So it is a different argument in the line of cases that follows
               essentially, Judge.4

(Emphasis added).

                                                II. Analysis

       On appeal, the Commonwealth argues that the trial court erred in finding police lacked

the requisite probable cause to arrest Coleman. We agree and reverse the trial court’s decision.

       On review of a motion to suppress,

               “[w]e are bound by the trial court’s findings of historical fact
               unless ‘plainly wrong’ or 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.” McGee v.
               Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261
               (1997) (en banc) (citing Ornelas v. United States, 517 U.S. 690,
               699, 116 S. Ct. 1657, 1659, 134 L. Ed. 2d 911 (1996)). However,
               we review de novo the trial court’s application of defined legal
               standards such as probable cause and reasonable suspicion to the
               particular facts of the case. See Shears v. Commonwealth, 23
               Va. App. 394, 398, 477 S.E.2d 309, 311 (1996); see also Ornelas,
               517 U.S. at 699, 116 S. Ct. at 1659.

Hayes v. Commonwealth, 29 Va. App. 647, 652, 514 S.E.2d 357, 359 (1999).

       The Commonwealth argues specifically that Detective Henderson had probable cause to

arrest Coleman after he “saw the hand-to-hand transaction” and after another officer saw suspected

cocaine in Coleman’s hand. Thus, the Commonwealth contends the officers “properly arrested

[Coleman] for possession of cocaine in Colonial Heights” and the fact that the officers “were



       4
        Based upon Coleman’s argument in this regard, as well as the trial court’s ruling
adopting the argument as the basis for its ruling, it appears that Coleman abandoned any
argument that his statement was not made freely or voluntarily.
                                                -5-
outside their territorial jurisdiction is of no constitutional moment.” (Emphasis in original).

Coleman responds that Detective Henderson arrested Coleman for “distribution of cocaine in

Chesterfield County while in Colonial Heights” although “he did not have probable cause in

Chesterfield County.” Accordingly, Coleman argues the arrest, and any fruits derived therefrom,

were in violation of his constitutional rights.

        “A police officer has authority to arrest within the jurisdiction in which the officer serves or

within statutorily defined extensions of that area.” Weaver v. Commonwealth, 29 Va. App. 487,

490, 513 S.E.2d 423, 425 (1999). Code § 19.2-250(A) provides:

                Notwithstanding any other provision of this article and except as
                provided in subsection B hereof, the jurisdiction of the corporate
                authorities of each town or city, in criminal cases involving
                offenses against the Commonwealth, shall extend within the
                Commonwealth one mile beyond the corporate limits of such town
                or city; except that such jurisdiction of the corporate authorities of
                towns situated in counties having a density of population in excess
                of 300 inhabitants per square mile, or in counties adjacent to cities
                having a population of 170,000 or more, shall extend for 300 yards
                beyond the corporate limits of such town or, in the case of the
                criminal jurisdiction of an adjacent county, for 300 yards within
                such town.

Assuming Detective Henderson violated this statute by arresting Coleman “more than 300 yards”

outside of his county of jurisdiction, we find that the arrest was otherwise constitutional.

        In Penn v. Commonwealth, 13 Va. App. 399, 412 S.E.2d 189 (1991), aff’d, 244 Va. 218,

420 S.E.2d 713 (1992), we explicitly held that the exclusionary rule adopted in Mapp v. Ohio, 367

U.S. 643 (1961), does not operate to exclude evidence from an arrest that is statutorily defective,

but otherwise constitutionally valid. Penn, 13 Va. App. at 406-07, 412 S.E.2d at 193. The Virginia

Supreme Court has rejected the invitation to adopt a state exclusionary rule for arrests that are

constitutionally valid but which may violate a statutory provision. See Horne v. Commonwealth,

230 Va. 512, 519, 339 S.E.2d 186, 191 (1986). Therefore, in this case, even if Coleman’s arrest was


                                                  -6-
“illegal” because Detective Henderson was a Chesterfield County police officer who had exceeded

his authority to arrest in Colonial Heights, the dispositive issue is whether Detective Henderson’s

arrest of Coleman violated any federal constitutional guarantees which the exclusionary rule, as

enunciated in Mapp, was designed to protect.

       As a general rule of constitutional law,

               [a] police officer may detain an individual to conduct a brief
               investigation without violating the Fourth Amendment when the
               officer has a reasonable, articulable suspicion that a person is
               engaging in, or is about to engage in criminal activity. The
               officer’s justification for stopping the individual need not rise to
               the level of probable cause, but must be based on more than an
               “inchoate and unparticularized suspicion or ‘hunch.’”

O’Banion v. Commonwealth, 33 Va. App. 47, 62-63, 531 S.E.2d 599, 606-07 (2000) (quoting Terry

v. Ohio, 392 U.S. 1, 27 (1968)). Moreover, an officer may make a warrantless arrest if he has

probable cause to believe the arrestee has committed a crime. Thompson v. Commonwealth, 10

Va. App. 117, 121, 309 S.E.2d 198, 201 (1990).

               “As an articulated legal standard, probable cause deals with
               probabilities concerning the factual and practical considerations in
               everyday life as perceived by reasonable and prudent persons. It is
               not predicated upon a clinical analysis applied by legal technicians.
               In determining whether probable cause exists courts will test what
               the totality of the circumstances meant to police officers trained in
               analyzing the observed conduct for purposes of crime control.”

DePriest v. Commonwealth, 4 Va. App. 577, 584, 359 S.E.2d 540, 543 (1987) (quoting Washington

v. Commonwealth, 219 Va. 857, 862, 252 S.E.2d 326, 329 (1979)) (other citations omitted).

       Here, Detective Henderson: 1) observed Coleman stop briefly at the Par Three Motel in

Chesterfield County, which was an area known for drug activity; 2) observed Coleman drive his car

to the Pilot Gas Station in Colonial Heights; 3) observed Coleman’s passenger exit the car and

another man who was waiting at the station get into the car; and 4) observed a hand-to-hand



                                                  -7-
transaction between the two men. At that point in time – in terms of the Fourth Amendment -

Detective Henderson had reasonable suspicion to detain Coleman and was constitutionally

permitted to conduct a brief investigation to either confirm or dispel his suspicions. O’Banion, 33

Va. App. at 62-63, 531 S.E.2d at 606-07. Once Henderson’s fellow officer observed what he

believed to be cocaine in Coleman’s hand and communicated this information to Henderson,

Detective Henderson had sufficient probable cause to arrest Coleman for that particular crime.

Thompson, 10 Va. App. at 121, 309 S.E.2d at 201.

       Indeed, Coleman’s contention below and on appeal that Detective Henderson arrested

Coleman for “distribution of cocaine in Chesterfield County” is a misstatement belied by the

record.5 Detective Henderson explicitly testified that he arrested Coleman for “possession of

cocaine,” before he read him his Miranda rights.6 Detective Henderson further testified that

Coleman gave his statement, admitting to selling cocaine in Chesterfield County, in conjunction

with the reading of his Miranda rights. Thus, it is clear that Detective Henderson arrested Coleman




       5
         Coleman contended during oral argument that the trial court made a factual finding that
the Colonial Heights arrest was a “de facto” arrest for distribution of cocaine in Chesterfield
County. However, the record reflects that the trial court merely adopted Coleman’s “argument”
on “4th amendment [sic] grounds.” The trial court did not render specific factual findings or rule
on the credibility of Detective Henderson’s uncontradicted testimony.
       6
          We note that Detective Henderson testified that, as he approached the car, “it was
communicated to [him] that there was cocaine in [Coleman’s] pants pocket,” and stated that it
was at that time that he placed Coleman under arrest. This testimony is at odds with his earlier
testimony that the cocaine was observed in Coleman’s hand and that, upon a search of
Coleman’s person, only money and a cellular phone were found. Nevertheless, even assuming
that the officers searched Coleman prior to arresting him, Coleman has never contended that he
was unconstitutionally searched. Accordingly, any such claim is waived for purposes of appeal.
See Rule 5A:18; see also Ohree v. Commonwealth, 26 Va. App. 299, 308, 494 S.E.2d 484, 488
(1998) (“The Court of Appeals will not consider an argument on appeal which was not presented
to the trial court. Rule 5A:18 applies to bar even constitutional claims.” (citations omitted)).
                                                -8-
for his criminal activity in Colonial Heights – not for his criminal activity in Chesterfield County.

It logically follows that, although statutorily defective, the arrest was not unconstitutional.7

        Even were we to assume (without deciding) that Detective Henderson initially arrested

Coleman for distribution of cocaine in Chesterfield County, it is clear that the arrest would have

nevertheless remained constitutional. We have specifically recognized that:

                Probable cause . . . turns only on “‘objective facts,’ not the
                ‘subjective opinion’ of a police officer.” Golden v.
                Commonwealth, 30 Va. App. 618, 625, 519 S.E.2d 378, 381
                (1999) (citations omitted). As a result, “the fact that the officer
                does not have the state of mind which is hypothecated by the
                reasons which provide the legal justification for the officer’s action
                does not invalidate the action taken as long as the circumstances,
                viewed objectively, justify that action.” Whren v. United States,
                517 U.S. 806, 813 (1996) (quoting Scott v. United States, 436 U.S.
                128, 138 (1978)).

Slayton v. Commonwealth, 41 Va. App. 101, 109, 582 S.E.2d 448, 451 (2003). There can be little

doubt, on these facts, that “viewed objectively,” the circumstances provided Detective Henderson

with the requisite probable cause to arrest Coleman for the Colonial Heights offense. Thus,

although statutorily defective, the arrest was not unconstitutional on this alternative ground.8

        Once Detective Henderson arrested Coleman, Coleman gave Detective Henderson the

incriminating statement concerning the Chesterfield County offense. That statement, given after a

constitutionally proper arrest, provided Detective Henderson with the requisite probable cause to

arrest and charge Coleman with the Chesterfield County offense of possession of cocaine with

intent to distribute. Accordingly, the arrest and related charge did not operate to invoke the




        7
         We nevertheless reiterate that violations of state procedural statutes are viewed by the
courts with disfavor. Campbell v. Commonwealth, 194 Va. 825, 831, 75 S.E.2d 468, 472
(1953); Penn, 13 Va. App. at 407, 412 S.E.2d at 194.
        8
      Because we find the arrest constitutional on these grounds, we do not reach the
Commonwealth’s argument concerning the propriety of the arrest as a “citizen’s arrest.”
                                            -9-
protections of the exclusionary rule. Penn, 13 Va. App. at 406-07, 412 S.E.2d at 193. We thus find

that the trial court plainly erred in adopting Coleman’s argument that “there was never probable

cause developed for distribution in Chesterfield” and in excluding the related evidence. For

these reasons, we reverse the trial court’s ruling suppressing evidence against Coleman and

remand for further proceedings consistent with this opinion.

                                                                           Reversed and remanded.




                                               - 10 -
