                      COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Humphreys and Senior Judge Hodges
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                          MEMORANDUM OPINION * BY
v.   Record No. 0759-03-1               JUDGE JAMES W. BENTON, JR.
                                               JULY 18, 2003
ERIC LAMONT FLYTHE


           FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY
                    Rodham T. Delk, Jr., Judge

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

          Anthony J. Nicolo (Ferrell, Sayer & Nicolo,
          P.C., on brief), for appellee.


     The grand jury indicted Eric Lamont Flythe for possession of

cocaine with intent to distribute.   The Commonwealth appeals from

the trial judge's pretrial order granting Flythe's motion to

suppress evidence.   See Code § 19.2-398.   For the reasons that

follow, we affirm the order.

                               I.

     "Upon appeal from a trial [judge's] ruling on a motion to

suppress, we must view the evidence in the light most favorable to

the prevailing party, in this instance [Flythe], granting to him

all reasonable inferences fairly deducible from the evidence."


     * Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
Commonwealth v. Spencer, 21 Va. App. 156, 159, 462 S.E.2d 899, 901

(1995).    Moreover, "we are bound by the trial [judge's] findings

of historical fact unless 'plainly wrong' or without evidence to

support them."    McGee v. Commonwealth, 25 Va. App. 193, 198, 487

S.E.2d 259, 261 (1997) (en banc).   Viewed in this light, the

evidence at the suppression hearing proved that Lynn Lawson, a

convicted drug felon, approached Detective Walter Joyner on the

street while the detective was investigating an incident unrelated

to this prosecution.   The detective testified that Lawson, who was

"not a, per se, informant" but had "provided information to [the

detective] in the past," said he had seen Antwon Hicks and Eric

Lamont Flythe "selling crack cocaine and that they've got guns and

they were the same people that shot at him before."   The detective

testified he asked Lawson "specifically did he see them selling

crack."    Lawson said he did and described the vehicle, giving a

specific license plate number and a location.

     When the detective drove to the location Lawson indicated, he

did not see the vehicle.   The detective testified that after he

drove "up and down the street" looking for the vehicle, Lawson

again approached him and said the vehicle was at an apartment

complex.   The detective drove to the apartments; however, he did

not see the vehicle at that location.   As the detective drove from

the apartments, he received information from another officer and

drove a distance of four blocks where he saw the vehicle.



                                - 2 -
Although Lawson had said two men were in the vehicle, the

detective testified three men were in the vehicle when he saw it.

     The detective and two officers followed the vehicle,

"eventually" made the stop, and approached the vehicle with their

guns unholstered.    Flythe asked why he had been stopped.   The

detective told him they "had information he was dealing crack

cocaine and had guns in the vehicle."   When Flythe denied having

guns, the detective ordered him to exit the vehicle.   The

detective testified that although Flythe was not under arrest, he

was not free to leave.   He described the reason for detaining

Flythe as follows:

           I would characterize it as we had
           information on individuals committing
           felonies and we were stopping them,
           consistent with the information we were
           given, and we were going to search them and
           do what we were suppose to do and that's why
           we stopped them.

     The detective testified that Flythe continuously said he

did not have drugs or guns and "was being evasive."     At one

point, when Flythe "stuck his hand in his left pocket" and

protested that the detective could not search him, the detective

pointed his gun at him and ordered him to put his hand on the

vehicle.   The detective testified that the following events

occurred after he put cuffs on Flythe's wrists:

              I walked him over to my patrol car and as
           we got there, I began to pat him down and I
           was feeling his right pocket. And in the
           process of feeling that I felt what appeared
           to be a rather linear object. It wasn't

                                - 3 -
          solid like a brick, but it appeared solid to
          me at the time. And I felt what I believed
          to be a plastic bag. And through feeling
          that, I felt hard objects in that. And from
          my experience of being a drug enforcement
          officer, I felt possibly he did have drugs
          in his pocket, so I went in his pocket and
          took that out, as well as the linear object
          at the same time.

              *     *     *        *       *     *     *

             After I found that, then I placed him
          under arrest for possession of cocaine with
          intent to distribute and continued to search
          him. Then I found another baggy in his left
          pocket which contained what appeared to be
          crack cocaine.

     The detective further explained that when he "felt the

plastic [during the frisk, he] was feeling all of it to try to

find out what he had in his pocket."      He also testified that the

"linear object" was a piece of cloth.      Another officer detained

the passengers and arrested one of them for possessing a firearm

after having been convicted of a felony.

     Lawson testified that he was a probationer when these

events occurred and that he had been convicted of six felonies,

most of which were drug related.       He described his participation

as follows:

          I was traveling Downtown Franklin. . . . It
          was me and my friend. And as I was going to
          the light. I looked over to the right. I
          seen [Flythe] on the phone. So I went over
          in the parking lot. . . . [H]e came to the
          van and the conversation was that I asked
          him why did he shoot at me [several months
          earlier] and he said that he thought I had a
          gun, that's why he shot at me. That was the
          conversation.

                              - 4 -
Q: Y'all shook hands and left peacefully;
did you not?

A:   Yes, sir.

     *      *    *    *      *    *     *

Q: And later on that evening you saw
Detective Joyner?

A:   Yes, sir.

Q: Tell the Judge, please, about your
conversation with him.

A: I told Joyner that it was an unknown
number called my house, saying that Eric and
his cousin were looking for me with a gun.

Q: You specifically told that to Detective
Joyner?

A:   Yes, sir.

     *      *    *    *      *    *     *

Q: And that person said that [Flythe] and a
friend of his had a gun and they were
looking for you?

A:   Yes.

Q: And that's the specific information you
gave to Detective Joyner?

A: (Witness nodding affirmatively.) Well,
I said that they were looking for me with a
gun, right, and then I said -- I asked him
did he know [Flythe]. He said, "Yeah, I
know him, because of the incident that
happened between y'all like seven months
ago. He shot at you and you came to the
police station and told the police." But I
didn't take no warrant out on him.

     *      *    *    *      *    *     *

Q: Did you give Detective Joyner a
description of the vehicle?



                     - 5 -
          A: Yeah, I told him it was a burgundy car,
          Honda Accord.

          Q: Did you give him the license plate
          number at that time?

          A:   Yes, sir.

On cross-examination, Lawson testified that he did not know

whether Flythe and his passenger had guns or drugs when he saw

them in the parking lot.

     Finding that the officer received a report "that Mr. Flythe

had a gun . . .   I don't recall anybody saying they saw him

brandish a gun, use a gun," the trial judge ruled that the

officers had conducted "a proper Terry investigative stop."     The

trial judge also found "that this [detention] is not an arrest,

this is not a search incident to an arrest, . . . I've heard

nothing to stand for that proposition."   When the prosecutor

argued "there was an arrest" the trial judge responded "the

Court's already ruled" and further noted as follows:

             [T]he only information, when he searched
          Mr. Flythe, was an informant's information.
          And I don't think we go around arresting
          people just because an informant hits the
          license plate number correct. It takes more
          than that.

                               II.

     "At a hearing on a defendant's motion to suppress, the

Commonwealth has the burden of proving the challenged action did

not violate the defendant's constitutional rights."    Russell v.

Commonwealth, 33 Va. App. 604, 604, 535 S.E.2d 699, 701 (2000).



                               - 6 -
Although "[t]he test of constitutional validity 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),

"[p]robable cause to arrest must exist exclusive of the incident

search."    Russell, 33 Va. App. at 604, 535 S.E.2d at 702.

     At the hearing, the prosecutor contended that the officer

searched Flythe incident to an arrest.    The trial judge found

that although the officer had reasonable articulable suspicion

sufficient to detain Flythe, the officer's search of Flythe was

not predicated upon an arrest.    He specifically found "this is

not an arrest . . . because the only information, when he

searched Mr. Flythe, was [a criminal] informant's information."

In short, the judge found that the officer detained Flythe under

Terry, not for an arrest, and that the frisk must be governed by

Terry standards.

     Despite the ruling by the trial court that no arrest had

occurred, the prosecutor persisted in arguing that the search

was justified as incident to arrest.     The prosecutor advanced no

other argument before the trial court to support the validity of

the search at issue.

     On appeal the Commonwealth does not contend the trial judge

erred in ruling the officer's detention of Flythe was not an

arrest.    Instead, the Commonwealth contends the evidence proved

                                 - 7 -
probable cause to make an arrest and to search incident to that

arrest.   However, because the Commonwealth failed to raise this

argument before the trial court, we do not consider it for the

first time on appeal.   See Rule 5A:18; see also West Alex. Prop.

v. First Va. Mort., 221 Va. 134, 138, 267 S.E.2d 149, 151 (1980)

("On appeal, though taking the same general position as in the

trial court, an appellant may not rely on reasons which could

have been but were not raised for the benefit of the lower

court."); Floyd v. Commonwealth, 219 Va. 575, 584, 249 S.E.2d

171, 176 (1978) (holding that appellate court will not consider

an argument on appeal that is different from the specific

argument presented to the trial court, even if it relates to the

same general issue).

     Accordingly, we affirm the judgment.

                                                        Affirmed.




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