COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Moon, Judges Coleman and Bray 

Argued at Norfolk, Virginia 

COMMONWEALTH OF VIRGINIA 

 MEMORANDUM OPINION* BY 

v. Record No. 0298-96-1 JUDGE SAM W. COLEMAN III 

 JUNE 25, 1996 

EDDIE D. JOHNSON 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

Everett A. Martin, Jr., Judge 

 Marla Graff Decker, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellant. 

 Steven A. Mirman (Stowe & Stanton, P.C., on 

brief), for appellee. 

 Eddie D. Johnson was indicted for possession of cocaine with 

intent to distribute in violation of Code § 18.2-248. Prior to 

trial, the trial court granted Johnson's motion to suppress the 

cocaine, and the Commonwealth appealed the court's ruling 

pursuant to Code § 19.2-398(2). The Commonwealth contends that 

Johnson was not seized in violation of the Fourth Amendment 

before he discarded and abandoned a "pill bottle" containing the 

cocaine that was suppressed. We hold that the initial encounter 

between the defendant and the police was consensual and that the 

police had probable cause to arrest the defendant when he 

attempted to discard the pill bottle containing cocaine. 

Accordingly, we reverse the trial court's ruling and remand the 

 

 * Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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case for trial on its merits. 

 On May 23, 1995, the Norfolk Police Department received a 

tip from an anonymous caller that "two black males [were] 

standing on the porch of 249 West 28th Street selling [crack 

cocaine]." The only description the caller gave of the men, 

other than their race, "was a very basic clothing description." 

This information was broadcast over the police radio, and 

Officers David S. Barber and Harry D. Boone responded to the 

reported location. Officer Barber testified that the 

neighborhood was known for drug activity and that he had made 

previous narcotics arrests at the same address. 

 When the officers arrived at the address, they observed two 

black males, one of whom was the defendant, on the front porch. 

The officers stated that the address is a boarding house and that 

there is a no-trespassing sign at the front entrance. Officer 

Barber testified that he "knew quite a few of the people that 

live there," and that he did not recognize either the defendant 

or the other man as residents of the house. 

 The officers approached the men who were on the porch and 

asked if they lived at the house. The men responded that they 

did not. Although the officers did not ask the men if they were 

visiting the house, Officer Barber testified that the men were 

not free to leave "because of the no-trespassing sign." However, 

the officer did not tell the defendant or his companion that they 

were not free to leave. 
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 The officers explained to the defendant that the police had 

received a call reporting that persons were selling drugs at that 

location and the officers asked the men if they could pat them 

down for weapons. Both men consented. The defendant turned 

around "and spread out in a position that [the police] commonly 

use to search people." Officer Barber asked the defendant if he 

had any narcotics, but the defendant did not respond. 

 Officer Barber proceeded to pat down the defendant, who was 

wearing a t-shirt and shorts. When Officer Barber "came around 

to the front of the shorts, [he] could feel inside the shorts in 

[the defendant's] groin area what appeared to [him] to be a pill 

bottle or a film canister." Officer Barber testified that, based 

upon his prior experience, pill bottles were commonly used for 

packaging cocaine in the neighborhood where the boarding house 

was located. 

 When Officer Barber touched the defendant's groin area, the 

defendant pushed back from the porch railing and bumped into 

Barber, knocking him slightly off balance. Then, the defendant 

reached into his shorts and removed a prescription pill bottle. 

Officer Boone grabbed the defendant's arm, and the defendant 

threw the bottle to the ground. The defendant attempted to flee, 

but was subdued by the officers after a lengthy struggle. It was 

later determined that the pill bottle the defendant discarded 

contained cocaine. 

 The trial court found that the anonymous tip did not provide 
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the police with reasonable suspicion to conduct a Terry stop, and 

that the police did not have probable cause to arrest the 

defendant for trespassing because they did not determine whether 

he was visiting someone at the boarding house. In addition, the 

court found that the defendant's consent to a pat down search was 

limited to a search for weapons, that the defendant withdrew his 

consent when Officer Barber searched his groin area, and that the 

defendant was seized before he abandoned the pill bottle 

containing the cocaine. 

 When the Commonwealth appeals the trial court's ruling on a 

motion to suppress, "[w]e view the evidence in a light most 

favorable to [the defendant], the prevailing party below, and we 

grant all reasonable inferences fairly deducible from that 

evidence." Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 

407 S.E.2d 47, 48 (1991). The trial court's decision will not be 

disturbed on appeal "unless it is plainly wrong." Id.

 Here, credible evidence supports the trial court's finding 

that the police officers did not have reasonable suspicion to 

conduct a Terry stop or probable cause to arrest the defendant 

for trespassing. Likewise, the evidence, viewed in the light 

most favorable to the defendant, supports the court's findings as 

to the scope and withdrawal of the defendant's consent to a pat 

down search, and the abandonment of the pill bottle. 

Nevertheless, the decision granting the motion to suppress was 

plainly wrong because the evidence shows that the defendant was 
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not seized for Fourth Amendment purposes until after he removed 

the pill bottle from his shorts and began to discard it, and at 

that point, probable cause existed for the police officer to make 

an arrest. 

 As the defendant concedes, his initial encounter with 

Officers Barber and Boone was consensual. The officers 

approached the defendant and his companion and asked them whether 

they lived in the boarding house. The officers then explained 

that they were investigating a report of drug dealing, but the 

officers did not specifically identify the defendant or the 

companion as suspects. When asked to submit to a search for 

weapons, the men consented and stated that "they had nothing to 

hide." In fact, the defendant not only consented to the search, 

but grabbed the porch railing "and spread out in a position that 

[the police] commonly use to search people." See Camden v. 

Commonwealth, 17 Va. App. 725, 727, 441 S.E.2d 38, 39 (1994) 

(finding that the accused "not only agreed to [the officer's] 

request for a weapons pat down, but . . . also began removing 

items from his pockets"). Although the police officers testified 

that they were investigating the defendant for trespassing and 

that he was not free to leave, they did not communicate this to 

the defendant. Because the relevant inquiry is whether "in view 

of all of the circumstances surrounding the incident, a 

reasonable person would have believed that he was not free to 

leave," United States v. Mendenhall, 446 U.S. 544, 554, 100 
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S. Ct. 1870, 1877, 64 L.Ed.2d 497 (1980), the unexpressed 

subjective intent of the officers was irrelevant for the purpose 

of determining whether the Fourth Amendment was implicated. Id.

at 554 n.6, 100 S. Ct. at 1877 n.6; see also United States v. 

Archer, 840 F.2d 567, 572 (8th Cir.), cert. denied, 488 U.S. 941, 

109 S. Ct. 365, 102 L.Ed.2d 354 (1988). 

 Officer Barber did not have authority or consent to remove 

the object that he felt in the defendant's groin area. The scope 

of the consensual search was limited to a search for weapons and 

Officer Barber acknowledged that the object could not have been a 

weapon. See Harris v. Commonwealth, 241 Va. 146, 151-52, 400 

S.E.2d 191, 194-95 (1991); Camden, 17 Va. App. at 727, 441 S.E.2d 

at 39-40. Nevertheless, Officer Barber did not exceed the scope 

of the consensual search by searching the defendant's groin area. 

 It is "objectively reasonable" for a police officer to believe 

that permission to conduct a pat down search for weapons includes 

permission to pat down the groin area. See Grinton v. 

Commonwealth, 14 Va. App. 846, 851, 419 S.E.2d 860, 862 (1992). 

Barber testified that based upon his experience as a police 

officer, he knew that people hid a variety of items in their 

groin area. Furthermore, the evidence does not indicate that 

Officer Barber expanded the scope of the search after he felt the 

object in the defendant's groin area. 

 The defendant reacted immediately to Officer Barber's search 

of his groin area by pushing himself away from the railing and 
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bumping into Barber, removing the pill bottle from his shorts, 

and attempting to throw the bottle to the ground. At that point, 

Officer Boone grabbed the defendant's arm and a lengthy struggle 

ensued. Therefore, the dispositive question is whether the 

officers had probable cause to arrest the defendant when Officer 

Boone grabbed his arm. 

 In determining whether there was probable cause to make an 

arrest, "the 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." DePriest v. 

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

(quoting Bryson v. Commonwealth, 211 Va. 85, 86-87, 175 S.E.2d 

248, 250 (1970)), cert. denied, 488 U.S. 985, 109 S. Ct. 541, 102 

L.Ed.2d 571 (1988). Here, Officer Barber did not have probable 

cause to arrest the defendant when he felt what appeared to be a 

film canister or pill bottle in the defendant's shorts because 

film canisters and pill bottles have legitimate uses. Harris, 

241 Va. at 154, 400 S.E.2d at 196. Nevertheless, Officer Barber 

would have been justified in questioning the defendant about the 

object he felt in the shorts because he was aware that the common 

practice in that neighborhood was to package cocaine in pill 

bottles. Before Officer Barber could investigate further, 

however, the defendant grabbed the bottle and attempted to 

discard it. See Lawson v. Commonwealth, 217 Va. 354, 357-58, 228 
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S.E.2d 685, 687 (1976). 

 In Lawson, the police officer approached the vehicle in 

which Lawson was a passenger to investigate an anonymous report 

of drug dealing. Lawson locked the passenger door as the officer 

approached, and the officer witnessed Lawson and the driver 

exchange an envelope that was later discarded on the floor of the 

passenger's side of the vehicle. Id. at 357, 228 S.E.2d at 687. 

 The Supreme Court held that the officer had "articulable reason" 

to investigate the anonymous report and that the furtive gestures 

he witnessed gave him probable cause to seize the envelope and 

arrest Lawson. Id. at 357-58, 228 S.E.2d 687-88; see also Hollis 

v. Commonwealth, 216 Va. 874, 876, 223 S.E.2d 887, 889 (1976). 

Likewise, the furtive gestures that Officers Barber and Boone 

witnessed prior to seizing the defendant, combined with the 

anonymous report of drug dealing, the high incidence of drug 

activity in the neighborhood, and Officer Barber's pat down 

search of the defendant's groin area, were sufficient to warrant 

a reasonable person in believing that an offense was being 

committed. 

 Because the police officers had probable cause to arrest the 

defendant at the time he was seized, the trial court erred by 

granting the motion to suppress the cocaine found in the pill 

bottle. Accordingly, we reverse the trial court's ruling and 

remand the case for trial. 

Reversed and remanded.