COURT OF APPEALS OF VIRGINIA

Present: Judges Kelsey, Hale y and Senior Judge Bumgardner Argued at Chesapeake, Virginia

JOSHUA TYREE MURPHY MEMORANDUM OPINION * BY v. Record No. 2845-08-2 J UDGE JAMES W. HALEY, JR. FEBRUARY 9, 2010 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Clarence N. Jenk ins, Jr., Judge Catherine French, Assistant Public Defender (Office of the Public Defender, on brief), for appellant. Robert H. Anderson, III, Seni or Assistant Attorney General (William C. Mims, Attorney Gene ral, on brief), for appellee.

* Pursuant to Code § 17.1-413, this opin ion is not designa ted for publication. I. After a bench trial, the ci rcuit court found Joshua Tyree Murphy (“Murphy”) guilty of possessing cocaine with the intent to distribute in violation of Code § 18.2-248. Murphy filed a pretrial motion to suppress evidence of cocaine discovered during a police search of Murphy’s person immediately following his arrest for trespa ssing, and he appeals the trial court’s denial of that motion. On appeal, Murphy argues that the search violated his ri ght to be free from

unreasonable searches and seizures under the Fo urth Amendment. Because the police had probable cause to arrest Murphy for trespassing, the search of Mu rphy’s person, incident to that arrest, was consistent with the Fourth Amendmen t. Thus, the trial court did not err in denying Murphy’s motion to suppress, and we affirm Murphy’s conviction.- 2 - II.

Facts On March 30, 2008, Officer Anthony Ratliff (“ Ratliff”) of the Richmond police was in the parking lot of the second precinct police st ation on East Belt Boulev ard in the City of Richmond. A construction site largely closed off by eight-foot-high chain-link fencing stood between the second precinct and the Midlot hian Village neighborhood of Richmond, which according to Ratliff was an area where crime and illegal drugs were common. Ratliff further testified that the property was an old lumberya rd, which in the past was often a pathway for pedestrians between Midlothian Village and Be lt Boulevard, until a ne w owner, GRTC, set up the fences, posted signs marked “no trespassing,” hired a security guard, and asked the police to keep people off the property. Because it was a Sunday, no construction work was in progress and at first it appeared to Ratliff that the site wa s completely deserted. However, Sergeant David Wallis (“Wallis”), who was with Ratliff in the parki ng lot, directed Ratliff’s attention to Murphy and two other people; the record does not identify Murphy’s comp anions, but Ratliff described them as “juveniles.” Wallis first saw them walking across the construction site, outside the fence. Shortly afterward, Wallis looked acro ss the lot a second time and this time he saw Murphy and his companions inside the fence, walk ing across the middle of the construction site. Wallis was unsure whether they had ducked undern eath or squeezed through one of the narrow gaps in the fence, but he suspected they must have entered the site by one of the aforementioned methods, since they were nowhere near any of the gates into the lot. After telling Wallis that he would tell the pe ople to stay off the property, Ratliff entered his police car and drove toward the construction site. He stopped en route to speak to a security guard employed by the property owner to keep tr espassers away from the construction site. Ratliff testified that he found the security gu ard, and asked him whether he was going to do- 3 - anything about Murphy and his companions. The s ecurity guard did not testify, and Ratliff did not specifically remember the security guard’s reply to his question. Ratliff only remembered that the security guard “seemed a little lost” and th at he continued to clean the floor mats of his car during the time when Ratliff was attempting to speak with him. According to Ratliff, the security guard made no reply when Ratliff asked him if he would accompany Ratliff to investigate the suspected trespassers. When Ratliff approached Murphy in his poli ce car, Murphy and the two juveniles were

outside of the fence on the Belt Boulevard side of the construction site. Ratliff identified them as the three people he had seen wa lking across the lot. When Ra tliff asked Murphy and the two juveniles whether they would speak to him, they stopped walking, and Ratliff told them to stay off the property. At least one of them responded, saying that they were allowed on the property. Ratliff asked them, “If they are allowing you on the property, why do they have it posted no trespassing and actually have to hire a security guard to make sure people stay off the property.” After Ratliff told them this, the juveniles began to protest loudly, and Ratliff asked them for identification. Murphy replied that he did not have any identification. Because he thought Murphy seemed nervous, and Ratliff testified that Murphy made unspecified “furtive looks,” Ratliff told Murphy that he would conduct a brie f pat-down search for weapons, and he began patting down Murphy’s pants leg. During Rat liff’s attempt to pat him down, Murphy pulled away from Ratliff and said, “You can’t search me.” Ratliff responded by telling Murphy to move over to his police car. Murphy refused, rep eating: “You can’t search me.” Then Ratliff took hold of Murphy’s coat and pulle d Murphy toward the police car. Next to the police car, Ratliff attempted to place Murphy in handcuffs “for my safety.” After Ratliff successfully placed one of Murphy’s hands in the handcuffs, Murphy jerked away, and Ratliff told Murphy that he was under arre st for trespassing. Wallis arrived shortly- 4 - afterward, and assisted Ratliff in binding Murphy’s remaining free hand. Inside a police van, which had arrived during the struggle, Ratliff conducted a search of Muphy’s person. In Murphy’s left pocket, Ratliff found a substance he believed to be cocaine. The prosecution later introduced the substance into evidence at Murphy’s trial.

III. Analysis In reviewing a trial court’s denial of a moti on to suppress, we consider the evidence in the light most favorable to the Commonwealth. McGee v. Commonwealth , 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) ( en banc ). “[A] defendant’s claim that evidence was seized in violation of the Fourth Amendment presents a mi xed question of law and fact that we review de

novo on appeal.” King v. Commonwealth , 49 Va. App. 717, 720, 644 S.E.2d 391, 392 (2007) (citing Ornelas v. United States , 517 U.S. 690, 691 (1996)). When considering the sufficiency of the evidence on appeal, we give the benefit of all reasonable inferences deducible from the evidence to the party prevailing below, whic h in this case is the Commonwealth. Shropshire v.

Commonwealth , 40 Va. App. 34, 38, 577 S.E.2d 521, 523 (2003). The burden is on Murphy to show that, viewing the evidence according to th is standard, the trial court’s ruling constituted

reversible error. See Fore v. Commonwealth , 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980). We will not set aside the judgment of the trial court unless it is plainly wrong or without evidence to support it. Martin v. Commonwealth , 4 Va. App. 438, 443, 358 S.E.2d 415, 418 (1987). The parties argued in the trial court – and c ontinue to argue on app eal – their respective sides of two separate questions: 1) whether the facts justified a pa t down of Murphy’s outer clothing to protect the safety of the police pursuant to Terry v. Ohio , 392 U.S. 1, 30 (1968); and 2) whether the police had probable cause to arrest Murphy for trespassing. A Terry pat down is- 5 - permissible when there exist specific, articula ble facts which lead th e police to reasonably believe both that criminal activity is afoot and th at the person subjected to the pat down may be armed and dangerous. Lowe v. Commonwealth , 33 Va. App. 656, 660-61, 536 S.E.2d 454, 456-57 (2000). Murphy argues that there were no facts that can justify a reasonable belief that he was armed and dangerous. However, given th e facts of this case, we need not reach the merits of this issue. Murphy raised this issu e pursuant to a motion to suppress, which sought to prevent the admission of the suspect ed cocaine into evidence. “P ursuant to ‘the fruit of the poisonous tree’ doctrine, ev idence seized as a result of an ille gal stop is inadmissible . . . .”

Harris v. Commonwealth , 276 Va. 689, 694, 668 S.E.2d 141, 145 (2008). The police did not seize the cocaine evidence that Murphy sought to suppress “as a result of” Ratliff’s disputed Terry pat down search of Murphy’s outer clothing. On the contrary, Ratliff did not discover any drugs until after Ratliff arrested Murphy, placed him in handcuffs, and brought him inside the police van. Thus, the admissibility of the cocaine evidence depends entirely on the resolution of the other issue argued by the parties, that is, wh ether Ratliff had probable cause to arrest Murphy for trespassing. When someone is lawfully arrested, the poli ce may search the person of the arrestee and the area where he can reach to grab a weapon or item of evidence. Chimel v. California , 395 U.S. 752, 762-63 (1969). Though the ra tionale supporting such searches is to protect the safety of police officers and to prev ent destruction of evidence, id. at 763, the validity of a search incident to arrest does not depend on proof that on e of these reasons justified the search in any particular case. See United States v. Robinson , 414 U.S. 218, 235 (1973). Thus, the lawfulness of Murphy’s arrest and, therefore, the validity of the disputed s earch depends on the existence of probable cause to believe that Murphy had committed an offense. See DePriest v.

Commonwealth , 4 Va. App. 577, 583, 359 S.E.2d 540, 543 (1987). ‘“Probable cause exists- 6 - when the facts and circumstances within the ar resting officer’s knowledge and of which he has reasonable trustworthy information are sufficient in themselves to warrant a man of reasonable

caution in the belief that an offens e had been or is being committed.’” Slayton v.

Commonwealth , 41 Va. App. 101, 106, 582 S.E.2d 448, 450 (2003) (quoting Purdie v.

Commonwealth , 36 Va. App. 178, 185, 549 S.E.2d 33, 37 (2001)). Relying on Jones v. Commonwealth , 18 Va. App. 229, 443 S.E.2d 189 (1994), Murphy argues that the police did not have probable cause to arrest him for trespassing. In Jones , the owner of the apartment complex posted “no tres passing” signs and communicated to the police several complaints of trespassing and drug dealing on the property. Id. at 230, 443 S.E.2d at

190. Police officers later arrested the defendant for trespassing on the sidewalk of the apartment complex. Id. at 231, 443 S.E.2d at 190. One of the arre sting officers testifie d that he believed the defendant was trespassing “bec ause [the defendant and anothe r man] were ‘hanging out’ and because [the defendant] ran as their car approached.” Id. at 232, 443 S.E.2d at 190. A panel of this Court reversed the defendant’s conviction, holding that the information available to the police fell short of probable cause. Jones’s mere presence with anothe r man on the premises at four o’clock in the afternoon near an automobile parked on a street by an apartment complex was insufficient to establish probable cause to believe that Jones was neither a resident of the apartment complex nor legitimately upon the pr emises at the invitation of a resident.

Id. at 233, 443 S.E.2d at 191. We hold that the facts in this case, partic ularly the location and the day of the week, distinguish this case from Jones , and we further hold that the tr ial court did not err in finding from these facts that Ratliff had probable cause to believe that Murphy was trespassing. Ratliff observed Murphy and his companions walking ac ross a construction site that was otherwise completely deserted. Signs marked “no trespa ssing” were visible. It was a Sunday, and no- 7 - construction work was in progress. The place where Ratliff saw Murphy was quite different from the apartment complex in Jones , since the residents of an apartment complex and their invited guests might legally be on the premises on any day of the week and at any time of day.

Cf. Raab v. Commonwealth , 50 Va. App. 577, 584, 652 S.E.2d 144, 148 (2007) ( en banc ) (“We fail to see how the residential apartment complex in Ewell [v. Commonwealth , 254 Va. 214, 491 S.E.2d 721 (1997),] can be sensibly analogized to a closed, unlit commercial restaurant. Apartment complexes do not close for the night . Residents and guests come and go as they please. Restaurants, on the ot her hand, can and do close to everyone. ”). 1 Murphy further argues Ratliff did not ha ve probable cause because Murphy and his companions told Ratliff that the security guard had given them permission to be on the property. This fact might be more persuasive but for the evidence that Ratliff informed the security guard of the presence of Murphy’s companions. Ratliff also testified that he informed the security guard of his intention to orde r Murphy and his companions to keep off the property. After Ratliff had done this, the security guard did nothi ng to indicate to Ratliff that Murphy and his companions were on the property with the ow ner’s permission, and given that Ratliff’s conversation with the security guard took place before he arrested Murphy for trespassing, we

are not convinced that the trial court erred in hol ding that Ratliff had proba ble cause to make the arrest. Moreover, the location within the empt y lot where the police first saw Murphy and his companions and other police testimony regard ing the direction in which Murphy and his companions were walking provide further support for the trial court’s ruling. Wallis testified that he observed Murphy and his companions wa lking outside of the fence and then saw them inside the fence, even though they were not clos e to the gate; Wallis believed they had either

1 The question presented in Raab was whether the information available to the police met the analogous, though less demanding, sta ndard of reasonable suspicion. Raab , 50 Va. App. at 581-82, 652 S.E.2d at 146-47.- 8 - crawled under the fence or walked through some break in the fence. This conclusion was consistent with Ratliff’s testimony that he and Wallis first observed Mu rphy and his companions coming from the Midlothian Village side of the lo t, while both the gate and the security guard were posted on the opposite side, facing Belt B oulevard. Given these circumstances, it was

within the discretion of the tria l court to reject Murphy’s argu ment that the statement that Murphy had permission from the security guard to be on the property deprived the police of probable cause to believe that Murphy was trespassing. Because Ratliff had probable cause to arrest, his search of Murphy’s pe rson incident to that arrest was reasonable under the Fourth

Amendment.

IV.

Conclusion For these reasons, we hold that the trial c ourt did not err in de nying Murphy’s pretrial motion to suppress the cocaine evidence. Mu rphy’s conviction and sentence are affirmed.

Affirmed.