                     COURT OF APPEALS OF VIRGINIA


Present:    Judge Annunziata, Senior Judges Cole and Duff
            Argued at Alexandria, Virginia

COMMONWEALTH OF VIRGINIA

v.           Record No. 2047-95-4       MEMORANDUM OPINION * BY
                                         JUDGE MARVIN F. COLE
TONY SIRREL MANN                           FEBRUARY 6, 1996


           FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA
                        Donald Hall Kent, Judge

            John H. McLees, Jr., Assistant Attorney General
            (James S. Gilmore, III, Attorney General, on
            brief), for appellant.
            J. Amy Dillard, Assistant Public Defender, for
            appellee.



     The appellee, Tony Sirrel Mann ("Mann"), was indicted for

possession of cocaine.    Following an evidentiary hearing, the

trial court granted Mann's motion to suppress, concluding that

the police lacked probable cause to arrest Mann.      The

Commonwealth appeals that ruling pursuant to Code § 19.2-398(2).

 For the reasons that follow, we reverse and remand.

     In reviewing a trial court's denial of a motion to suppress,

"the burden is upon [the appellant] to show that this ruling,

when the evidence is considered most favorably to the

Commonwealth, constituted reversible error."       Fore v.

Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert.

denied, 449 U.S. 1017 (1980).       "When an arrest is challenged on

constitutional grounds, the Commonwealth has the burden to prove
     *
      Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the arrest was based on probable cause."     Watson v. Commonwealth,

19 Va. App. 659, 664, 454 S.E.2d 358, 361 (1995).

        On March 25, 1995, at about 11:10 p.m., Alexandria Police

Officer William G. Bunney ("Bunney") was in a concealed location,

watching for drug violations.    This location was selected because

it was an area with a "high incidence of drug activity" and "a

lot of buyers come in and leave from" it.    Street lights and

lights from adjacent dwellings illuminated the area.    Stationed

twelve to fifteen feet above street level, Bunney observed Mann

walking alone towards his position from the direction of a group

of men Bunney had been observing.    Bunney did not observe Mann as

part of the group, and he did not see the group engaging in any

suspicious activity.
        From a distance of approximately twenty-five feet, Bunney,

with his naked eye, observed Mann lift his right hand and open

his palm, exposing a small, off-white, rock-like object about

three-quarters the size of a green pea.    Bunney saw Mann look at

the object briefly, then close his hand, returning it to his

side.    Believing Mann possessed cocaine, Bunney called for his

arrest.    Another Alexandria police officer, responding to the

request, made the arrest, conducted a search incident to the

arrest, and seized the alleged contraband.

        Mann filed a motion to suppress and an evidentiary hearing

was held on the motion.    The only evidence presented at the

hearing was the testimony of Bunney and the officer who made the



                                 - 2 -
arrest.   Their testimony was uncontradicted and unimpeached in

any manner.    Bunney testified that he had been employed as a

police officer for the City of Alexandria for ten years, seven of

which he was assigned to street level interdiction of narcotics.

In this capacity, he had seen crack cocaine in excess of a

thousand times.   Bunney testified that he focused his attention

on Mann and he had a clear and unobstructed view of him.

Regarding the incident involved in this case, he stated:
          At one point, he simply brought up his right
          hand, opened it up. I could detect a small,
          light colored object. He looked at it very
          briefly, closed his hand, put his hand back
          down. All this, while proceeded to walk
          [sic].

     Bunney testified that he could clearly see the entire palm

of Mann's hand.   He further described the object in the hand as

off-white in color, not perfectly round, or square, or

cylindrical.   It was not packaged and was a rock-like object.    He

said the object was smaller than a household eraser and probably

three-quarters the size of a green pea.   He testified that based

upon his training and experience, he "believed it to be a rock of

crack cocaine."   Based upon this conclusion, Bunney had another

officer arrest Mann for possession of cocaine.   Bunney identified

the defendant as the person that he observed on the street.

     The only issue in this case is whether the police had

probable cause to arrest Mann and, incident to that arrest, to

seize from him the object that Officer Bunney believed to be

crack cocaine.    The test of the constitutional validity of a



                                - 3 -
warrantless 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.'"    Hardy v. Commonwealth, 11 Va. App.

433, 434, 399 S.E.2d 27, 28 (1990) (quoting DePriest v.

Commonwealth, 4 Va. App. 577, 583-84, 359 S.E.2d 540, 543 (1987),

cert. denied, 488 U.S. 985 (1988)).     Furthermore, "we are

required to 'test what the totality of the circumstances meant to

police officers trained in analyzing the observed conduct for

purposes of crime control.'"    Derr v. Commonwealth, 6 Va. App.

215, 220, 368 S.E.2d 916, 918 (1998) (quoting Hollis v.

Commonwealth, 216 Va. 874, 877, 223 S.E.2d 887, 889 (1976)).       See

also Buck v. Commonwealth, 20 Va. App. 298, 302, 304, 456 S.E.2d

534, 536 (1995); DePriest, 4 Va. App. at 584, 359 S.E.2d at 543.

     The United States Supreme Court has frequently remarked that
          probable cause is a flexible, common-sense
          standard. It merely requires that the facts
          available to the officer would "warrant a man
          of reasonable caution in the belief" that
          certain items may be contraband or stolen
          property or useful as evidence of a crime; it
          does not demand any showing that such a
          belief be correct or more likely true than
          false. A "practical, nontechnical"
          probability that incriminating evidence is
          involved is all that is required.

Texas v. Brown, 460 U.S. 730, 742 (1983) (citations omitted).

Accord Delong v. Commonwealth, 234 Va. 357, 366, 362 S.E.2d 669,

673 (1987), cert. denied, 485 U.S. 929 (1988) (using identical

language to define probable cause).



                                - 4 -
        In Illinois v. Gates, 462 U.S. 213 (1983), the Supreme Court

said:
             [P]robable cause requires only a probability
             or substantial chance of criminal activity,
             not an actual showing of such activity. By
             hypothesis, therefore, innocent behavior
             frequently will provide the basis for a
             showing of probable cause; to require
             otherwise would be to sub silentio impose a
             drastically more rigorous definition of
             probable cause than the security of our
             citizens demands. . . . In making a
             determination of probable cause the relevant
             inquiry is not whether particular conduct is
             "innocent" or "guilty", but the degree of
             suspicion that attaches to particular types
             of noncriminal acts.

462 U.S. at 243-44, n. 13.     See also United States v. Sokolow,

490 U.S. 1, 8 (1989).
               Ordinarily, uncontradicted evidence
          should be accepted as true and cannot be
          wholly discredited or disregarded if not
          opposed to probabilities, even though the
          witness is an interested party.
          Uncontradicted evidence is not, however,
          necessarily binding on the court or the jury.
          It may be disbelieved where it is inherently
          improbable, inconsistent with circumstances
          in evidence, or somewhat contradictory in
          itself, especially where the witness is a
          party or is interested. Neither courts nor
          juries are required to believe that which
          they know from ordinary experience is
          incredible.

Stegall v. Commonwealth, 208 Va. 719, 722, 160 S.E.2d 566, 568

(1968) (citing Belton v. Commonwealth, 200 Va. 5, 9, 104 S.E.2d

1, 4 (1958)); Blankenship v. Commonwealth, 193 Va. 587, 593, 70

S.E.2d 335, 338 (1952)).

        In this case, the testimony of Officer Bunney was



                                 - 5 -
uncontradicted and unimpeached.    It was not inconsistent with any

circumstances in evidence, and was not contradictory.     Therefore,

the trial court had no reason to disbelieve it upon this record

at this stage of the proceedings.   The undisputed evidence

clearly proved that Bunney had a reasonable belief that the

object in the defendant's hand was cocaine.     He observed it in

plain view right before his eyes.      See Carson v. Commonwealth, 12

Va. App. 497, 501, 404 S.E.2d 919, 921, aff'd on reh'g en banc,

13 Va. App. 280, 410 S.E.2d 412 (1991), aff'd, 244 Va. 293, 421
S.E.2d 415 (1992) (holding that officer may seize item if he is

in lawful position to see item and it is immediately apparent

that item is evidence of crime).    Therefore, the police officers

were justified in arresting Mann and seizing the object as an

incident of the arrest.   Accordingly, the ruling of the trial

court was plainly wrong and without evidence to support it.

     For these reasons, we reverse the trial court's order

suppressing evidence of the alleged cocaine because the police

officers lacked probable cause to arrest Mann and remand for

further proceedings.
                                            Reversed and remanded.




                               - 6 -
Annunziata, J., dissenting.

     The question before this Court is whether Bunney had

probable cause to believe the object Mann held was crack cocaine.

 As stated in the majority opinion, the standard we apply in

making this determination is whether
          the facts available to [Bunney] would
          `warrant a man of reasonable caution in the
          belief' that [the item Mann held] may [have
          been] contraband . . . or useful as evidence
          of a crime; it does not demand any showing
          that such a belief be correct or more likely
          true than false.


Delong v. Commonwealth, 234 Va. 357, 366, 362 S.E.2d 669, 674

(1987), cert. denied, 485 U.S. 929 (1988) (quoting Texas v.

Brown, 460 U.S. 730, 741-42 (1983)); Commonwealth v. Ramey, 19

Va. App. 300, 304, 450 S.E.2d 775, 777 (1994) (same).     But see 2

Wayne R. LaFave, Search & Seizure, § 3.2(e), at 82 (3rd Ed. 1996)

(suggesting a more probable than not standard in such a

circumstance). 1

     1
      LaFave suggests a higher standard should be applied when
the question is whether there is probable cause to believe a
crime has occurred:

          It is commonly said that `an arrest and
          search based on events as consistent with
          innocent as with criminal activity are
          unlawful,' so that if the observed pattern of
          events `occurs just as frequently or even
          more than frequently in innocent
          transactions, the pattern is too equivocal to
          form the basis for such a warrantless
          arrest.'

LaFave, supra, § 3.2(e), at 69 (citations omitted).     See also
People v. McRay, 416 N.E.2d 1015, 1019 (N.Y. 1980).




                              - 7 -
        I first note that the trial court applied the correct

standard in determining Bunney lacked probable cause to arrest

Mann.    Nothing in the record suggests the court demanded proof

that Bunney's belief that he observed cocaine be correct or be

more probably so than not.    Moreover, the record does not suggest

that the court failed to consider the evidence from the

perspective of the reasonable police officer "trained in

analyzing the observed conduct for purposes of crime control."

See Derr v. Commonwealth, 6 Va. App. 215, 220, 368 S.E.2d 916,

918 (1988) (citation omitted).    Rather, it appears the court

credited both Bunney's experience and his testimony concerning

what he saw.

        In weighing Bunney's testimony, however, the trial court

made a factual determination that probable cause did not exist.

As such, the trial court's determination will be affirmed unless

it is plainly wrong or unsupported by the evidence.     See Code

§ 8.01-680; Commonwealth v. Grimstead, 12 Va. App. 1066, 1067,

407 S.E.2d 47, 48 (1991); see also LaFave, supra, § 11.7(c), at
401 ("the reviewing court will affirm the trial court's

determinations unless `it is left with the definite and firm

conviction that a mistake has been committed'") (citation

omitted).

        The considerable deference accorded the trial judge's

determination of probable cause under the "plainly wrong"

analysis reflects the difficulty inherent in evaluating the




                                 - 8 -
quantum of information which is required to support a finding of

probable cause.   "The distinction between `reasonable belief' and

`bare suspicion' remains elusive and can only be determined by

focusing on the precise facts of individual cases."   Ronald J.

Bacigal, Virginia Criminal Procedure § 4-7 (3d ed. 1994).   As

between the trial and appellate courts, the former is assigned

the "primary responsibility" for making this distinction as it is

in the "superior position" to evaluate and weigh the evidence.

LaFave, supra, § 11.7(c), at 401 (citing United States v.
McConney, 728 F.2d 1195 (9th Cir. 1984)).

     I find the court's determination that Bunney lacked probable

cause to arrest Mann was not plainly wrong or unsupported by the

evidence.   Distilled to its essence, the evidence shows that the

only activity Bunney witnessed from his perch, some twenty-five

feet away, bearing any relationship to a belief that Mann carried

crack cocaine was Mann looking at an off-white, rock-like object

three-quarters the size of a pea that he held in his hand while

he walked in an area known for drug trafficking.

     The remaining circumstances under which Bunney observed Mann

were innocent in character.   Bunney did not see Mann engaged in

the activities of the group he had under surveillance for conduct

involving controlled substances, and he saw no suspicious

activity by the group itself.   He observed no packaging

materials, drug paraphernalia, or consumptive activity by Mann.

The fact that Mann approached from the direction where the group



                                - 9 -
was located is of little, if any, import.    And, Bunney's

testimony that Mann walked as if he had just bought crack was

conclusory and lacked the articulation of "objective facts that

could justify the issuance of a warrant by a magistrate."      Derr,

6 Va. App. at 220, 368 S.E.2d at 918 (1988) (citation omitted);

Cf. DePriest v. Commonwealth, 4 Va. App. 577, 584, 359 S.E.2d

540, 543 (1987), ("In assessing an officer's probable cause for

making a warrantless arrest, no less strict standards may be

applied than are applicable to a magistrate's determination that

an arrest warrant should issue."), cert. denied, 488 U.S. 985
(1988) (citation omitted).    Moreover, Bunney initially testified

that Mann walked at a "normal gait."     As such, the court did not

err in failing to accord great weight to the testimony regarding

Mann's manner of walking in its review of the totality of the

circumstances.

         The remaining circumstance--the character of an area--is

clearly a relevant circumstance to consider.     See DePriest, 4 Va.

App. at 585, 359 S.E.2d at 544; LaFave, supra, § 3.6(g), at
333-37.    However, weighing the nature of an area too heavily has

the consequence of adversely affecting honest citizens who live

there.     Id. at 334 (citation omitted); see also Riley v.

Commonwealth, 13 Va. App. 494, 498, 412 S.E.2d 724, 726-27

(1992).    The proper balance is struck by "using the crime problem

in the area only to give meaning to highly suspicious facts and

circumstances."     Id. at 336-37 (emphasis added) (citation




                                - 10 -
omitted); see also United States v. Gonzalez, 362 F. Supp. 415,

421-22 (S.D.N.Y 1973).    Under the facts of this case, the trial

court's implicit finding that Mann's activity was not so

suspicious as to accord great weight to the character of the

neighborhood in which the incident took place, was not plainly

wrong.

     In summary, the trial court's determination that Bunney had

insufficient cause to arrest Mann was predicated on its

evaluation of the totality of the circumstances and was not

plainly wrong.   The court weighed Bunney's experience and

testimony, the size and color of the object, and Bunney's vantage

point against the absence of any other circumstance which would

support something more than bare suspicion that the object Mann

held was crack cocaine.   Moreover, Bunney himself conceded that

the presence of additional suspicious circumstances enhanced the
                                                                    2
reliability of his bare observation of the suspected substance.
Such circumstances were absent here.    Accordingly, I would

affirm.


     2
      At the hearing, the following colloquy took place:

               THE COURT: But generally, when you spot
          somebody like this, there's something else
          that brings them to your attention, other
          than the fact that they've got something in
          the palm of their hand. There's a cash
          transaction going on?

               [BUNNEY]: Or the way they're acting, or
          the way they're standing. Yes, sir.




                               - 11 -
