                               COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judges Kelsey and McClanahan
Argued at Salem, Virginia


LESTER O’NEIL WOODRUFF
                                                            MEMORANDUM OPINION * BY
v.     Record No. 1178-09-3                             CHIEF JUDGE WALTER S. FELTON, JR.
                                                                 NOVEMBER 9, 2010
COMMONWEALTH OF VIRGINIA


                 FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
                              Mosby G. Perrow, III, Judge

                 David D. Embrey for appellant.

                 Erin M. Kulpa, Assistant Attorney General (Kenneth T. Cuccinelli,
                 II, Attorney General, on brief), for appellee.


       Lester O’Neil Woodruff (“appellant”) was convicted by a jury of possession of cocaine

with intent to distribute pursuant to Code § 18.2-248. On appeal, appellant argues the trial court

erred in denying his motion to suppress evidence seized from him and statements he made to

police. 1 He also contends his conviction should be set aside because the indictment was

“constructively amended.” For the following reasons, we affirm the judgment of the trial court.

       Because the parties are fully conversant with the record in this case, we recite only those

facts and incidents of the proceedings as are necessary to the analysis.




       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
       1
         This appeal is governed by Rule 5A:20(c) as worded prior to its revision effective July
1, 2010, changing the requirement for setting forth “questions presented” to “assignments of
error.”
                                          I. Motion to Suppress

          Appellant contends the trial court erred in denying his motion to suppress the evidence

seized from his person and his car. He asserts that Lynchburg Police Department Vice Narcotics

Unit Investigators Riley and Smith exceeded the scope of a Terry 2 pat down resulting in his

unconstitutional arrest. He further asserts the statements he made to the investigators at the

scene and later at the police station should have been suppressed as fruit of the poisonous tree of

an unlawful search and seizure of evidence. See Wong Sun v. United States, 371 U.S. 471

(1963).

          “In reviewing a trial court’s denial of a motion to suppress, ‘[t]he burden is upon [the

defendant] to show that th[e] ruling, when the evidence is considered most favorably to the

Commonwealth, constituted reversible error.’” McGee v. Commonwealth, 25 Va. App. 193,

197, 487 S.E.2d 259, 261 (1997) (en banc) (quoting Fore v. Commonwealth, 220 Va. 1007,

1010, 265 S.E.2d 729, 731 (1980)). However, “‘[u]ltimate 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.” Id. (quoting Ornelas v. United States, 517 U.S. 690, 691 (1996)).

Similarly, “[w]e 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.” Id. at 198, 487 S.E.2d at 261.

          Here, the investigators observed appellant involved in a suspected drug transaction

outside of a residence that was well-known to the investigators for illegal drug activity. 3

Appellant drove away from the residence and pulled over to the side of the road approximately



          2
              Terry v. Ohio, 392 U.S. 1 (1968).
          3
        The vice narcotics unit had received 25 reports of drug activity, served several warrants,
and conducted three controlled drug purchases at that residence in the previous 18 months.
                                              -2-
20 blocks later. The investigators, who were driving an unmarked police car, pulled in behind

appellant. The police car, located approximately “a car length and a half” behind appellant’s car,

did not obstruct appellant’s ability to drive away. At no time did the investigators activate the

emergency lights on the police car. Both investigators were dressed in plain clothes and

displayed police badges around their necks.

       The investigators reasonably believed that appellant had been involved in a drug

transaction from their observations a few minutes earlier. When the investigators approached

appellant, he consented to talk to them and consented to a search of his car for guns or

ammunition. Prior to searching the car, Investigator Smith asked appellant if he had any

weapons on his person. While talking to Investigator Smith, appellant repeatedly put his hands

in his pockets even though he was asked numerous times not to do so by Investigator Smith.

Appellant exhibited increasingly nervous behavior (shifting his weight from foot to foot and

looking over Investigator Smith’s shoulder). At oral argument on appeal, appellant expressly

conceded the investigators had sufficient reasonable suspicion to conduct an investigatory

detention and to perform a pat down for weapons.

       During the pat down, Investigator Smith felt what he suspected, based on his training and

experience, to be drugs in appellant’s pocket.

               “Assuming the object discovered in the pat-down does not feel like
               a weapon, this only means that a further search may not be
               justified under a Terry analysis. There remains the possibility that
               the feel of the object, together with other suspicious
               circumstances, will amount to probable cause that the object is
               contraband or some other item subject to seizure, in which case
               there may be a further search based upon that probable cause.”

Bunch v. Commonwealth, 51 Va. App. 491, 495, 658 S.E.2d 724, 725 (2008) (quoting 4 Wayne

R. LaFave, Search and Seizure § 9.5(c), at 668-69 (4th ed. 2004)). Once he felt what he

suspected was a bag containing cocaine in appellant’s pocket, Investigator Smith asked appellant


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if he intended to smoke the “crack” in his pocket. Appellant admitted that was his plan. Based

on appellant’s admission, Investigator Smith had probable cause to arrest appellant for

possession of cocaine, and authority to remove the bags from his pockets in a search incident to

his arrest. 4 Taylor v. Commonwealth, 222 Va. 816, 820, 284 S.E.2d 833, 836 (1981)

(“[P]robable cause exists when the facts and circumstances within the officer’s knowledge, and

of which he has reasonably trustworthy information, alone are sufficient to warrant a person of

reasonable caution to believe that an offense has been or is being committed.”).

       Accordingly, we hold that the trial court did not err in denying appellant’s motion to

suppress.

                         II. Constructive Amendment of the Indictment

       For the first time on appeal, appellant argues that his conviction for possession of cocaine

with intent to distribute should be set aside because the amended indictment for possession of

cocaine with intent to distribute, third or subsequent offense, was “constructively amended.” 5

He asserts that the constructive amendment occurred because the jury instructions granted by the

trial court and verdict form it gave to the jury did not contain the words “third or subsequent




       4
          Appellant’s argument that his statement admitting that he had cocaine in his pocket was
obtained in violation of his rights under Miranda v. Arizona, 384 U.S. 436 (1966), was not
argued to the trial court. Because appellant did not raise his Miranda argument to the trial court,
he is barred by Rule 5A:18 from raising it for the first time on appeal.
        In any event, we need not address the issue further because the exclusionary rule does not
apply to physical evidence discovered as a result of a Miranda violation. United States v. Patane,
542 U.S. 630, 634, 644-45 (2004) (plurality and concurring opinions); United States v. Sterling,
283 F.3d 216, 219 (4th Cir. 2002). “In short, the privilege against self-incrimination is simply
‘not concerned with nontestimonial evidence.’” Rowley v. Commonwealth, 48 Va. App. 181,
183, 629 S.E.2d 188, 189 (2006) (quoting Oregon v. Elstad, 470 U.S. 298, 304 (1985)).
       5
          “A constructive amendment to an indictment occurs when either the government
(usually during its presentation of evidence and/or its argument), the court (usually through its
instructions to the jury), or both, broadens the possible bases for conviction beyond those
presented by the grand jury.” United States v. Floresca, 38 F.3d 706, 710 (4th Cir. 1994).
                                                 -4-
offense.” Accordingly, appellant requests that we invoke the ends of justice exception to

Rule 5A:18.

        “Application of the ends of justice exception is appropriate when the judgment of the trial

court was error and application of the exception is necessary to avoid a grave injustice or the

denial of essential rights.” Charles v. Commonwealth, 270 Va. 14, 17, 613 S.E.2d 432, 433

(2005). We decline to invoke the ends of justice exception here.

        Viewing the evidence in the light most favorable to the Commonwealth, the evidence

showed that appellant admitted to the investigators that he purchased four ounces of cocaine to

distribute. Appellant told the investigators that he used some of the cocaine found in his car

himself, distributed some of it to others, and planned to distribute the rest later that evening.

From the evidence admitted at trial, the jury could clearly find beyond a reasonable doubt that

appellant was guilty of possession of cocaine with intent to distribute.

        Even though prior to trial, the trial court amended the indictment to charge possession of

cocaine with intent to distribute, third or subsequent, the jury was instructed only on the proof

necessary to determine appellant’s guilt of possession of cocaine with intent to distribute. The

jury convicted appellant of that offense, a lesser-included offense of that charged in the amended

indictment. See Kauffmann v. Commonwealth, 8 Va. App. 400, 409, 382 S.E.2d 279, 283

(1989) (“A lesser included offense is an offense which is composed entirely of elements that are

also elements of the greater offense.”); see also Ansell v. Commonwealth, 219 Va. 759, 762, 250

S.E.2d 760, 762 (1979) (Code § 18.2-248 is a specific recidivist statute that “provid[es]

additional punishment for subsequent commission of the same offense” (emphasis added)). After

the jury returned its verdict of guilty of possession of cocaine with intent to distribute, the trial

court amended the sentencing instructions to the jury to reflect the statutory range of punishment

for the offense for which appellant was convicted.

                                                 -5-
       Appellant cannot show that the conviction for a lesser-included offense than that charged

in the amended indictment prejudiced his defense. He was not convicted of a distinctly different

offense than that charged in the amended indictment. He was convicted of a lesser-included

offense with a maximum punishment less than that which could have been imposed had he been

convicted of the offense charged in the amended indictment. Accordingly, because appellant

cannot show “a grave injustice or the denial of essential rights,” we decline to invoke the ends of

justice exception to set aside appellant’s conviction due to his asserted constructive amendment

of the indictment. Charles, 270 Va. at 17, 613 S.E.2d at 433.

                                         CONCLUSION

       For the foregoing reasons, the Court affirms the judgment of the trial court.

                                                                                    Affirmed.




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