                  COURT OF APPEALS OF VIRGINIA


Present: Judges Bray, Frank and Bumgardner
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                            MEMORANDUM OPINION * BY
v.   Record No. 1779-01-1                    JUDGE ROBERT P. FRANK
                                                JANUARY 4, 2002
KEBVIN SHAQUAN FOSTER


          FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
                      Louis R. Lerner, Judge

          Marla Graff Decker, Assistant Attorney
          General (Randolph A. Beales, Attorney
          General; Margaret W. Reed, Assistant Attorney
          General, on brief), for appellant.

          Theophlise L. Twitty for appellee.


     Indicted for possession of cocaine, pursuant to Code

§ 18.2-248, Kebvin Shaquan Foster (appellee) moved the trial court

to suppress the cocaine found on him, contending the officer did

not have probable cause to arrest him for possession of cocaine.

Following a hearing on that motion, the trial court granted the

motion, finding that the police had no probable cause to arrest.

The Commonwealth appeals pursuant to Code § 19.2-398, contending

the police had probable cause to arrest.    We agree with the

Commonwealth and reverse the trial court.




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

     On March 30, 2001, Hampton Police Officer Brian Snyder was

driving toward 435 Dare Avenue, a known narcotics location.

Snyder saw "several subjects" in that area of Dare Avenue, a

location where the police "had received several complaints of drug

activity taking place."

     Snyder, who was still in his vehicle, "got within six feet of

the group [where appellant was standing] . . . [and saw] the

[appellee] at that time with his right hand behind his back."

Appellee's back was towards the officer.

     Snyder observed appellee reach behind his back with his hand

closed, but "as he reached into his pants it opened up."   "I could

see at that time suspected cocaine in his hand in a plastic

baggie."    Snyder described the cocaine as a golf-ball-sized

object.    When appellee removed his hand from his pants, his hand

was empty.

     On cross-examination, defense counsel asked the officer, "You

didn't know it to be cocaine, did you?"    The officer replied, "I

didn't have it tested at that time, no."    Defense counsel then

asked, "[Y]ou didn't know what it was?"    The officer replied,

"[N]o sir."

     The following exchange took place between defense counsel and

Snyder:

             Q. Did you have a reason to believe -- not
             just a suspicion -- that what he had was
             cocaine? Did you have reason to believe

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          that it was cocaine or you suspected it to
          be cocaine? It's two different questions.

          A.     Excuse me?

          Q.     Did you suspect it to be cocaine?

          A. No, sir. I saw an off-white substance
          that we retrieved before in the past which
          came back after being tested which could be
          at that point suspected cocaine reaching in
          the back of his pants. The reason I
          testified it was suspected cocaine is
          because --

          Q.     You suspected it to be cocaine?

          A. Exactly. It had not been tested to be
          proven to be --

     On re-direct, Snyder specifically stated the object "looked

like cocaine."

     Snyder testified that he had been with the special

investigative unit of the Hampton police for four years.    Snyder

attended "basic undercover school, narcotics investigation

school, advanced tactical school," and a class at the state

forensic laboratory on the identification of narcotics.    The

officer had made between 60-100 arrests for possession of

cocaine during his tenure with the investigative unit.

     After observing the item in appellee's hand, Snyder exited

his vehicle and asked appellee to put his hands on the car.      The

officer told appellee that he had seen him put suspected cocaine

in the back of his pants.     At first, appellee resisted the

officer, but after the officer repeated the request, Foster put

his hands on the car.    Snyder pulled appellee's rear waistband


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away from his body and saw the plastic baggie with the suspected

cocaine.    After retrieving the bag, the officer arrested

appellee for possession of cocaine.       The officer also found $503

and a cell phone on the appellee.

     At the suppression hearing, appellee argued the officer

only "suspected" the object to be cocaine, that the officer only

had "reasonable suspicion" and not probable cause to arrest.

     The trial court described appellee's argument as follows:

"If he doesn't articulate probable cause and he only articulates

the word suspect, [defense counsel] argues that's reasonable

suspicion.    Therefore, he doesn't have anything more to do at

that point than to pat him down and he can't search him."

Defense counsel agreed with this explanation of the motion to

suppress.

     The trial court discussed the argument with the prosecutor:

             [THE COURT:] You're asking the Court to
             infer from the remainder of the testimony
             that he had the probable cause to do the
             search beyond the fact that he has
             articulated nothing but a suspicion. You're
             asking the Court to read into every other
             fact he testified about for the Court to
             make a determination that there was probable
             cause for him to search. Is that correct?

             THE COMMONWEALTH:   Yes, Your Honor.

             THE COURT: Even though he hasn't
             articulated the words probable cause. He
             only articulated suspicion. You're saying I
             can go beyond his articulation and I can say
             he had the probable cause to do the search.
             He could do more than a pat-down at that


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          point even though he has not articulated
          that to me.

          THE COMMONWEALTH:   Yes, Your Honor.

     The trial court then granted appellee's motion to suppress

the fruits of the search.   The Commonwealth appealed this

ruling.

                              ANALYSIS

     "It is well established that on appeal the burden is on the

appellant[, the Commonwealth in this instance,] to show,

considering the evidence in a light most favorable to

[appellee], that the [granting] of a motion to suppress

constitutes reversible error."     Commonwealth v. Tart, 17 Va.

App. 384, 390-91, 437 S.E.2d 219, 223 (1993).

          Questions of reasonable suspicion and
          probable cause . . . are subject to de novo
          review on appeal. See McGee v.
          Commonwealth, 25 Va. App. 193, 197, 487
          S.E.2d 259, 261 (1997) (en banc). "In
          performing such analysis, we are bound by
          the trial court's findings of historical
          fact unless 'plainly wrong' or without
          evidence to support them . . . ." Id. at
          198, 487 S.E.2d at 261.

Archer v. Commonwealth, 26 Va. App. 1, 8, 492 S.E.2d 826, 830

(1997).

          "[T]he test of constitutional validity [of a
          warrantless arrest and incidental search] is
          whether, at the moment of arrest, the
          arresting officer had knowledge of
          sufficient facts and circumstances to
          warrant a reasonable man in believing that
          an offense has been committed." Bryson v.
          Commonwealth, 211 Va. 85, 86-87, 175 S.E.2d
          248, 250 (1970) (citing Brinegar v. United

                                 - 5 -
          States, 338 U.S. 160 (1949)). To establish
          probable cause, the Commonwealth must show
          "'a probability or substantial chance of
          criminal activity, not an actual showing'"
          that a crime was committed. Ford v. City of
          Newport News, 23 Va. App. 137, 143-44, 474
          S.E.2d 848, 851 (1996) (quoting Illinois v.
          Gates, 462 U.S. 213, 243 n.13 (1983)). "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." Hollis v.
          Commonwealth, 216 Va. 874, 876-77, 223
          S.E.2d 887, 889 (1976) (citation omitted).
          The issue of whether probable cause existed
          to make a warrantless search involves
          questions of both law and fact and is
          reviewed de novo on appeal. See McGee v.
          Commonwealth, 25 Va. App. 193, 197-98, 487
          S.E.2d 259, 261 (1997) (en banc) (citing
          Ornelas v. United States, 517 U.S. 690, 691
          (1996)).

Powell v. Commonwealth, 27 Va. App. 173, 176-77, 497 S.E.2d 899,

900-01 (1998).

     Appellee relies on DePriest v. Commonwealth, 4 Va. App.

577, 359 S.E.2d 540 (1987), to support his contention.    In

DePriest, we held an officer's observation of several "hand to

hand" transactions was not sufficient for probable cause to

arrest because the officer "did not observe suspected narcotics

change hands nor did he observe the exchange of any object which

in his experience suggested narcotics."   Id. at 585, 359 S.E.2d

at 544 (emphasis added).

     Here, the officer, trained and experienced in drug

interdiction and having made between 60-100 drug arrests, saw in

appellee's hand a substance he "suspected" was a baggie

                              - 6 -
containing cocaine.   He also testified the object "looked like

cocaine."    This event occurred in a location known for

narcotics.    In addition, appellee clearly attempted to hide the

item from the police.

     Powell is more applicable to these facts than DePriest.

Officers arrested Powell after observing him in a high crime

area, making furtive gestures as if to discard something that

appeared to be cocaine.    Powell, 27 Va. App. at 177, 497 S.E.2d

at 901.   We held, "[I]t was reasonable for [Officer] Stokes,

drawing upon his training and experience, to conclude that the

substance was probably cocaine."    Id.    This presumption,

together with Powell's behavior, gave the officers probable

cause for the arrest.

     Here, the police had received several complaints about drug

activity on this particular street.     Appellee was standing in

this area with several other people.      The officer observed him

hiding something that "looked like cocaine" in the back of his

pants.    Under these circumstances, it was reasonable for Snyder,

drawing upon his training and experience, to conclude that the

substance probably was cocaine.    He then had probable cause for

the arrest.

     The fact that the officer did not intone the words

"probable cause" is of no moment.   An officer is not required to

use these particular words in order for a trial court to find

probable cause existed.   "'[P]robable cause is measured against

                                - 7 -
an objective standard.'"   Taylor v. Commonwealth, 10 Va. App.

260, 266, 391 S.E.2d 592, 595-96 (1990) (quoting United States

v. Salinas-Calderon, 728 F.2d 1298, 1300 (10th Cir. 1984)

(citing Beck v. Ohio, 379 U.S. 89, 96, (1964))).   Probable cause

exists when, after examining the totality of the circumstances,

"'"the facts and circumstances within the arresting officers'

knowledge and of which they had reasonably trustworthy

information are sufficient in themselves to warrant a man of

reasonable caution in the belief that" an offense has been or is

being committed.'"   Jefferson v. Commonwealth, 27 Va. App. 1,

12-13, 497 S.E.2d 474, 479-80 (1998) (quoting Brinegar, 338 U.S.

at 175-76 (quoting Carroll v. United States, 267 U.S. 132, 162

(1925))).

     The use of legal terms such as "probable cause" and

"reasonable suspicion" by the witnesses clearly does not enter

into this determination.   If Snyder had stated that he had

probable cause, but in fact he did not, the trial court would

not be bound by that subjective belief or his legal conclusion.

An officer's subjective belief or statement that he had probable

cause does not bind a court to agree with that determination.

See Dickerson v. Commonwealth, 35 Va. App. 172, 183, 543 S.E.2d

623, 628-29 (2001) ("[T]he officer's subjective beliefs are

irrelevant for purposes of determining whether the officer

actually had probable cause to arrest.").   Conversely, the

failure of an officer to testify using the "magic words," i.e.,

                               - 8 -
probable cause, does not require a court to find an arrest was

illegal.

     Here, we are not reviewing the trial court's findings of

historical fact.   Credibility is not an issue in this argument.

The parties agree on the facts.   We need determine only whether,

based on the facts known to Snyder, would a man of reasonable

caution believe an offense had been or was being committed, thus

giving him probable cause to arrest appellee.   See Jefferson, 27

Va. App. at 12-13, 497 S.E.2d at 479-80.

     While the officer spoke in terms of "suspected cocaine,"

his testimony clearly explained he used the term because he

could not be absolutely certain the item in the baggie was

cocaine until the laboratory analysis was completed.   See

Armstrong v. Commonwealth, 29 Va. App. 102, 110-11, 510 S.E.2d

247, 250-51 (1999) (explaining that officers have probable cause

to arrest a suspect observed holding something that, based on

the officers' experience, training, and the surrounding

circumstances, they believe or suspect is illegal narcotics).

See also Purdie v. Commonwealth, 36 Va. App. 178, 188-89, 549

S.E.2d 33, 38 (2001) (finding probable cause to arrest where the

officer's training, experience, and the surrounding

circumstances led him to believe the defendant was attempting to

conceal drugs, although the officer did not see the item the

defendant attempted to hide); Carson v. Commonwealth, 12 Va.

App. 497, 502, 404 S.E.2d 919, 922 ("[A]n investigating officer

                               - 9 -
does not have to 'deal with hard certainties, but with

probabilities,' and is permitted to make 'common-sense

conclusions about human behavior' in assessing a situation" for

probable cause. (quoting Texas v. Brown, 460 U.S. 730, 742

(1983))), aff'd en banc, 13 Va. App. 280, 410 S.E.2d 412 (1991),

aff'd, 244 Va. 293, 421 S.E.2d 415 (1992).

     We conclude, therefore, that Officer Snyder had probable

cause to arrest appellant for possession of cocaine; therefore,

the search of his person incident to the arrest was lawful.

"'When an officer has probable cause to arrest a person, the

officer may search the person . . . .'"   Williams v.

Commonwealth, 21 Va. App. 263, 267, 463 S.E.2d 679, 681 (1995)

(quoting Buck v. Commonwealth, 20 Va. App. 298, 304, 456 S.E.2d

534, 537 (1995)).   We reverse the decision of the trial court

and remand for trial on the indictment.

                                             Reversed and remanded.




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