                                             COURT OF APPEALS OF VIRGINIA


              Present: Judges Elder, Frank and Huff
UNPUBLISHED


              Argued at Chesapeake, Virginia


              MARQUICE BYNUM
                                                                                MEMORANDUM OPINION * BY
              v.     Record No. 0273-12-1                                          JUDGE GLEN A. HUFF
                                                                                    DECEMBER 18, 2012
              COMMONWEALTH OF VIRGINIA



                                FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY
                                              Carl E. Eason, Jr., Judge

                               Jennifer Walsh, Deputy Public Defender (Office of the Public
                               Defender, on brief), for appellant.

                               Benjamin H. Katz, Assistant Attorney General (Kenneth T.
                               Cuccinelli, II, Attorney General, on brief), for appellee.


                     Marquice Bynum (“appellant”) appeals his conviction of possession of cocaine with the

              intent to distribute, in violation of Code § 18.2-248. Following a bench trial in the Circuit Court

              of Southampton County (“trial court”), appellant was sentenced to six years in prison, with three

              years suspended. On appeal, appellant contends the trial court erred in denying his motion to

              suppress on the basis that there was no probable cause to arrest him for obstruction of justice.

              For the following reasons, we affirm the judgment of the trial court.

                                                       I. BACKGROUND

                     “Upon appeal from a trial court’s ruling on a motion to suppress, we must view the

              evidence in the light most favorable to the prevailing party, . . . granting to it all reasonable

              inferences fairly deducible from the evidence.” Commonwealth v. Spencer, 21 Va. App. 156,


                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
159, 462 S.E.2d 899, 901 (1995) (citing Commonwealth v. Grimstead, 12 Va. App. 1066, 1067,

407 S.E.2d 47, 48 (1991)). So viewed, the evidence is as follows.

        On the morning of March 11, 2011, Corporal J.B. Butts (“Butts”) and Sergeant Cornell,

officers with the City of Franklin Police Department, conducted a bicycle patrol around Franklin.

During their patrol, the officers passed by the corner of Pretlow Street and South Street, which they

knew to be a high drug-trafficking area and the site of numerous shootings and burglaries. At the

intersection, Butts and Cornell observed two men talking and making gestures toward each other.

Dismounting from their bicycles, the officers approached the men and asked to speak to them. One

of the men appeared calm; the other man, later identified as appellant, immediately began backing

away from the officers, then turned and ran. As he did so, appellant took off his coat and discarded

it onto the public street.

        Butts pursued appellant, who ran approximately twenty-five to thirty feet before he tripped

and fell. At that point, Butts took appellant into custody. In conducting a search incident to the

arrest, Butts found thirty-seven individually wrapped bags of cocaine, one $50 bill, and four $1 bills

in appellant’s pockets. Thereafter, appellant was charged with possession of cocaine with the intent

to distribute.1

        In a suppression hearing on November 3, 2011, Butts testified that he arrested appellant for

obstruction of justice. At the conclusion of the evidence pertaining to the motion to suppress,

counsel for appellant argued that the seizure was illegal because the circumstances of the encounter

were insufficient to give a reasonable officer probable cause to believe appellant was obstructing

justice. In response, the Commonwealth asserted that there was probable cause for the arrest

because appellant committed a misdemeanor littering offense, in violation of Code § 33.1-346,


        1
         Appellant was also charged with obstruction of justice, which was dismissed in the
general district court. In stating its findings, the trial court noted that the subsequent dismissal of
the obstruction charge had no bearing on whether the arrest itself was lawful.
                                                   -2-
directly in front of Butts. The trial court denied the motion to suppress. Appellant entered a

conditional guilty plea, and the trial court convicted appellant of possession of cocaine with the

intent to distribute. This appeal followed.

                                   II. STANDARD OF REVIEW

       “[O]n appeal, appellant carries the burden to show, considering the evidence in the light

most favorable to the Commonwealth, that the denial of a motion to suppress constitutes

reversible error.” Motley v. Commonwealth, 17 Va. App. 439, 440-41, 437 S.E.2d 232, 233

(1993) (citation omitted). “‘Though the ultimate question whether the officers violated the

Fourth Amendment triggers de novo scrutiny, we defer to the trial court’s findings of historical

fact and give due weight to the inferences drawn from those facts by resident judges and local

law enforcement officers.’” Slayton v. Commonwealth, 41 Va. App. 101, 105, 582 S.E.2d 448,

449-50 (2003) (quoting Barkley v. Commonwealth, 39 Va. App. 682, 689-90, 576 S.E.2d 234,

237-38 (2003)). “Thus, we must give ‘deference to the factual findings of the trial court’ and

‘independently determine’ whether those findings satisfy the requirements of the Fourth

Amendment.” Id. at 105, 582 S.E.2d at 450 (quoting Whitfield v. Commonwealth, 265 Va. 358,

361, 576 S.E.2d 463, 464 (2003)).

                                          III. ANALYSIS

       On appeal, appellant contends that the trial court erred in denying his motion to suppress

on the basis that Butts lacked probable cause to arrest him for obstruction of justice. In response,

the Commonwealth asserts that appellant committed a littering offense, in violation of

Code § 33.1-346, in Butts’s presence prior to being seized; thus, Butts had probable cause to

arrest appellant and conduct a search incident to the arrest. 2

       2
           Code § 33.1-346 provides, in relevant part:

                 It shall be unlawful for any person to dump or otherwise dispose of
                 trash, garbage, refuse, litter, . . . or other unsightly matter, on
                                                      -3-
       “The Fourth Amendment guarantees, in relevant part, ‘[t]he right of the people to be

secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.’”

McGhee v. Commonwealth, 280 Va. 620, 624, 701 S.E.2d 58, 59-60 (2010) (alteration in

original) (quoting U.S. Const. amend. IV). “In Virginia, a police officer may arrest a person

without a warrant if the officer has probable cause to believe he committed a crime in the

officer’s presence.” Id. at 624, 701 S.E.2d at 60 (citation omitted).

       “‘Probable cause exists when the facts and circumstances within the arresting officer’s

knowledge and of which he has reasonabl[y] trustworthy information are sufficient in themselves

to warrant a man of reasonable caution in the belief that an offense had been or is being

committed.’” Slayton, 41 Va. App. at 106, 582 S.E.2d at 450 (quoting Purdie v. Commonwealth,

36 Va. App. 178, 185, 549 S.E.2d 33, 37 (2001)). “A police officer’s ‘action is reasonable under

the Fourth Amendment, regardless of the individual officer’s state of mind, as long as the

circumstances, viewed objectively, justify [the] action.’” Thomas v. Commonwealth, 57

Va. App. 267, 273, 701 S.E.2d 87, 90 (2010) (alteration in original) (quoting Brigham City v.

Stuart, 547 U.S. 398, 404 (2006)).

               Thus, faced with a suppression motion, a court should not limit
               itself “to what the stopping officer says or to evidence of his
               subjective rationale,” Raab v. Commonwealth, 50 Va. App. 577,
               583 n.2, 652 S.E.2d 144, 148 n.2 (2007) (en banc), but instead
               should make “an objective assessment of the officer’s actions in
               light of the facts and circumstances confronting [them] at the time,



               public property, including a public highway, right-of-way, property
               adjacent to such highway or right-of-way, or on private property
               without the written consent of the owner thereof or his agent.

                      *       *       *      *       *       *       *

               Any person convicted of a violation of this section shall be guilty
               of a misdemeanor punishable by confinement in jail for not more
               than 12 months and a fine of not less than $250 or more than
               $2,500, either or both.
                                              -4-
               and not on the officer’s actual state of mind at the time the
               challenged action was taken.”

Id. at 274, 701 S.E.2d at 90-91 (alteration in original) (quoting Maryland v. Macon, 472 U.S.

463, 470-71 (1985)).

       Applying these principles to the present case, Butts had probable cause to arrest appellant

at the point where appellant dropped his coat in the street. While Butts testified that he arrested

appellant based on his belief that appellant had committed obstruction of justice, we are not

limited to considering Butts’s subjective motivation for the arrest. In assessing the

circumstances of the encounter objectively, a reasonable officer could have found probable cause

to believe that appellant committed a misdemeanor littering offense in the officer’s presence.

Thus, the circumstances reasonably permitted Butts to arrest appellant based on the commission

of that offense. Accordingly, we hold that the trial court did not err in denying the motion to

suppress the cocaine recovered from the search incident to appellant’s arrest.

                                       IV. CONCLUSION

       For the foregoing reasons, we hold that the trial court did not err in denying the motion to

suppress, and thus affirm the judgment of the trial court.

                                                                                          Affirmed.




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