Present: All the Justices 

DARRIO L. COST 

 OPINION BY 

v. Record No. 070496 JUSTICE LAWRENCE L. KOONTZ, JR. 

 February 29, 2008 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

In this appeal, we consider whether the Court of Appeals 

erred in affirming a circuit court’s judgment denying a motion 

to suppress evidence seized by a police officer from inside the 

defendant’s pants pocket during a “pat-down” search. The sole 

issue presented is whether the officer had sufficient probable 

cause to seize a number of capsules based upon his assertion 

that by the “plain feel” of the capsules he knew, through his 

training and experience, that they contained an illegal drug 

packaged in capsule form. 

BACKGROUND 

The pertinent facts in this case are not in dispute. 

Around 12:40 a.m. on December 14, 2004, Portsmouth Police 

Officer B. C. Davis, who was assigned as a full-time agent of 

the Portsmouth Redevelopment and Housing Authority with 

responsibility for patrolling residential developments of the 

Authority, approached Darrio L. Cost, who was sitting in the 

passenger seat of a vehicle parked in a parking lot designated 

for residents of the Jeffry Wilson housing complex. This 
property was owned by the Authority. As Davis approached the 

vehicle’s passenger side window, he observed as Cost 

“immediately reach[ed] across his body towards his left front 

pants pocket.” Davis asked Cost what he was reaching for, but 

Cost did not answer. Davis told Cost “to get away from” his 

pocket, but Cost reached toward the pocket again. Davis then 

directed Cost to exit the vehicle. 

Upon exiting the vehicle, Cost immediately told Officer 

Davis, “[y]ou can’t search me, but you can pat me down.” Davis 

conducted a “pat down” search of Cost for concealed weapons. In 

doing so, Davis immediately frisked the left front pants pocket 

toward which Cost had been reaching. When Davis touched the 

pocket, he felt numerous capsules inside. Davis reached into 

Cost’s pocket and removed a plastic bag containing twenty 

capsules. Subsequent analysis of the contents of those capsules 

showed that they contained heroin. 

Cost was indicted by a grand jury in the Circuit Court of 

the City of Portsmouth on the charge of possession of heroin 

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

Prior to trial, Cost moved to suppress the heroin capsules 

seized from his person during the pat-down search, claiming they 

were discovered in violation of his rights under the Fourth 

Amendment. At the suppression hearing, Officer Davis testified 

that he had been a police officer for approximately four and a 

2
half years. Davis testified that he did not feel what he 

thought to be a weapon in Cost’s pocket and that he did not 

think that there was a weapon in that pocket after he felt the 

capsules there. Davis contended that upon feeling the capsules 

in Cost’s pocket he “knew” that they were heroin because 

“[t]hrough my training and experience, I know that that’s what 

heroin is packaged in.” On cross-examination, Davis admitted 

that over-the-counter medications such as “Motrin, Tylenol, or 

something along those lines” are sometimes “packaged in 

capsules.” 

The circuit court denied Cost’s motion to suppress the 

evidence seized from his person. Cost was tried without a jury 

and found guilty of the offense charged in the indictment. The 

circuit court sentenced Cost to ten years imprisonment, with a 

portion of the sentence suspended. Cost appealed his conviction 

to the Court of Appeals challenging the circuit court’s failure 

to suppress the evidence. The Court of Appeals affirmed the 

conviction in a published opinion, Cost v. Commonwealth, 49 Va. 

App. 215, 638 S.E.2d 714 (2006). We granted Cost this appeal. 

DISCUSSION 

A defendant’s claim that evidence was seized in violation 

of the Fourth Amendment presents a mixed question of law and 

fact that we review de novo on appeal. Murphy v. Commonwealth, 

264 Va. 568, 573, 570 S.E.2d 836, 838 (2002); Bolden v. 

3
Commonwealth, 263 Va. 465, 470, 561 S.E.2d 701, 704 (2002); 

McCain v. Commonwealth, 261 Va. 483, 489, 545 S.E.2d 541, 545 

(2001); see also Ornelas v. United States, 517 U.S. 690, 691, 

699 (1996). In making such a determination, we give deference 

to the factual findings of the circuit court, but we 

independently determine whether the manner in which the evidence 

was obtained meets the requirements of the Fourth Amendment. 

Bolden, 263 Va. at 470, 561 S.E.2d at 704; McCain, 261 Va. at 

490, 545 S.E.2d at 545; Bass v. Commonwealth, 259 Va. 470, 475, 

525 S.E.2d 921, 924 (2000). The defendant has the burden to 

show that, considering the evidence in the light most favorable 

to the Commonwealth, the circuit court’s denial of his 

suppression motion was reversible error. Bolden, 263 Va. at 

470, 561 S.E.2d at 704; McCain, 261 Va. at 490, 545 S.E.2d at 

545; Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 

731 (1980). 

Cost does not dispute that during an investigative stop, a 

law enforcement officer may conduct a limited search for 

concealed weapons if the officer reasonably believes that a 

criminal suspect may be armed and dangerous. Terry v. Ohio, 392 

U.S. 1, 27 (1968); see also Florida v. J.L., 529 U.S. 266, 269-

70 (2000); Adams v. Williams, 407 U.S. 143, 146 (1972); Harris 

v. Commonwealth, 241 Va. 146, 150, 400 S.E.2d 191, 193-94 

(1991); Jones v. Commonwealth, 230 Va. 14, 19, 334 S.E.2d 536, 

4
539-40 (1985). Indeed, Cost expressly consented to such a 

limited search of his person by Officer Davis. Rather, Cost 

argues that his Fourth Amendment right to be free from 

unreasonable searches and seizures was violated because Officer 

Davis exceeded the proper scope of a Terry pat-down search. 

Cost contends that this is so because the character of the 

capsules as containing heroin, or some other form of contraband, 

would not be immediately apparent merely by feeling the capsules 

through his clothing, and Davis could discern that what he did 

feel in Cost’s pocket was not a weapon. Thus, Cost asserts that 

the heroin capsules removed from his pocket should have been 

excluded from evidence. 

The Commonwealth responds that the Court of Appeals 

correctly held that determining whether a law enforcement 

officer conducting a Terry pat-down search had sufficient 

probable cause to seize an item suspected to be contraband based 

upon the feel of the object through the suspect’s clothing 

requires a consideration of the totality of the circumstances. 

Cost, 49 Va. App. at 227, 638 S.E.2d at 719-20. Thus, the 

Commonwealth contends that the circuit court correctly ruled, 

and the Court of Appeals properly agreed, that Officer Davis was 

justified in seizing the capsules from Cost’s pocket because 

“[a]lthough other [legal] substances are contained in capsules, 

his own experience and common sense told Davis that one does not 

5
carry numerous loose capsules of legal substances in one’s 

pocket.” 

We agree with the Commonwealth that the determination 

whether a law enforcement officer had sufficient probable cause 

to seize contraband from a person in the course of a Terry patdown search requires a consideration of the totality of the 

circumstances surrounding the search, as well as a consideration 

of the officer’s knowledge, training and experience. As we have 

recently observed, “[a]n officer who conducts a Terry pat-down 

search is justified in removing an item from a subject’s pocket 

if the officer reasonably believes that the object might be a 

weapon. Lansdown v. Commonwealth, 226 Va. 204, 213, 308 S.E.2d 

106, 112 (1983). Additionally, the removal of an item from a 

subject’s pocket is also justified if the officer can identify 

the object as suspicious under the ‘plain feel’ variation of the 

plain view doctrine. Minnesota v. Dickerson, 508 U.S. 366, 375-

76 (1993); see Murphy v. Commonwealth, 264 Va. 568, 574, 570 

S.E.2d 836, 839 (2002).” Grandison v. Commonwealth, 274 Va. 

316, 319-20, 645 S.E.2d 298, 300 (2007). 

The “plain feel” doctrine comports with the traditional 

application of the Fourth Amendment because, when the character 

of the object felt by the officer is immediately apparent either 

as a weapon or some form of contraband, the object is for all 

practical purposes within the plain view of the officer. The 

6
Fourth Amendment does not require the officer to be subjected 

unreasonably to the risk of harm from a dangerous weapon or to 

ignore criminal activity occurring in his presence. In 

Dickerson, the United States Supreme Court explained that when 

the identity of the object is immediately apparent to the 

officer conducting a legal pat-down search of a suspect “there 

has been no invasion of the suspect’s privacy beyond that 

already authorized by the officer’s search for weapons; if the 

object is contraband, its warrantless seizure would be justified 

by the same practical considerations that inhere in the plainview context.” 508 U.S. at 375-76. 

“However, an item may not be retrieved under the plain view 

doctrine unless it is ‘immediately apparent’ to the officer that 

the item is evidence of a crime. Coolidge v. New Hampshire, 403 

U.S. 443, 466 (1971); Murphy, 264 Va. at 574, 570 S.E.2d at 

839.” Grandison, 274 Va. at 320, 645 S.E.2d at 300. It is not 

sufficient probable cause to seize an item from inside the 

suspect’s clothing if the officer has no more than an educated 

“hunch” based upon the “plain feel” that the item might be 

contraband. See Harris v. Commonwealth, 241 Va. 146, 151, 400 

S.E.2d 191, 194 (1991) (addressing officer’s “hunch” that a 

closed canister contained illegal drugs). 

Consistent with these principles, we have stated that “when 

the character of the item is not immediately apparent from the 

7
‘pat[-]down’ search, and the officer does not reasonably suspect 

that the item is a weapon, further search regarding the item is 

not allowed [by the Fourth Amendment] because such an 

evidentiary search is unrelated to the justification for the 

frisk” of the suspect. Murphy, 264 Va. at 574, 570 S.E.2d at 

839. In Murphy, we held that marijuana contained in a plastic 

bag in the suspect’s pants pocket was illegally seized during a 

pat-down search because the character of the bag’s contents as 

contraband was not immediately apparent from the officer’s 

tactile perception and, thus, the officer did not have probable 

cause to seize the bag and its content without a warrant. Id.

at 574-75, 570 S.E.2d at 839-40. 

In the present case, Officer Davis admitted in his 

testimony that over-the-counter medications such as “Motrin, 

Tylenol, or something along those lines” are sometimes “packaged 

in capsules.” Common experience in the purchase of these legal 

medications supports this admission. Moreover, it is selfevident that if an item may just as well be a legal medication 

dispensed in capsule form or a capsule containing an illegal 

drug, its character as the latter cannot be readily apparent by 

feeling a suspect’s outer clothing that contains the item 

inside. 

In that context, the Court of Appeals acknowledged that 

“feeling the capsules alone may not be sufficient probable 

8
cause” to support the warrantless seizure of the capsules in 

question. Cost, 49 Va. App. at 227, 638 S.E.2d at 719. In an 

effort to distinguish our decision in Murphy, the Court of 

Appeals reasoned that Cost had “attempted to conceal the drugs, 

failed to heed the officer’s demand that he cease the furtive 

behavior, and failed to respond to the officer’s questions.” 

Id. at 227, 638 S.E.2d at 720. 

We disagree with the Court of Appeals’ characterization of 

Cost’s actions as “furtive” and its conclusion that Cost 

“attempted to conceal the drugs.” Even viewed in the light most 

favorable to the Commonwealth, the evidence does not show that 

Cost did anything by stealth or in a surreptitious manner. 

According to Officer Davis’ testimony, Davis was readily able to 

observe all of Cost’s actions. There is no evidence to even 

suggest that Cost attempted to remove the drugs from his pocket 

and secrete them in some other place. There is no evidence that 

Cost attempted to conceal the drugs; they were already in his 

pocket. Cost’s failure to respond to the officer’s questions is 

of no particular significance because Cost was under no 

obligation to respond to Davis’s questions. Moreover, Cost 

complied with Davis’s order to exit the vehicle and immediately 

consented to the pat-down search by Davis. 

In sum, whatever significance Cost’s actions may have had 

in supporting Davis’ suspicions regarding Cost under the 

9
totality of the circumstances, they relate to the justification 

for the pat-down search conducted by Davis for a possible 

concealed weapon. Whether those circumstances support the 

seizure of the capsules is another matter. In Murphy, the 

“totality of circumstances” was, if anything, more suggestive of 

the presence of contraband. Murphy was subject to a lawful patdown search for weapons when he was found in a residence where 

police executed a “search warrant [that] authorized the police 

to search ‘the entire residence’ for ‘marijuana, cocaine, 

cocaine base, heroin, scales, ledgers, logs, money, guns, phone 

bills, syringes and any other item that would be connected with 

the illegal sale and/or use of any other illegal narcotic or 

non-prescription drug.’ ” Murphy, 264 Va. at 571, 570 S.E.2d at 

837. Yet, in that case we held that marijuana contained in a 

plastic bag in the suspect’s pants pocket was illegally seized 

during a pat-down search because the character of the baggie’s 

contents as contraband was not immediately apparent. 

Here, the character of the capsules seized from Cost’s 

pants pocket could not have been immediately apparent to Officer 

Davis as a result of the pat-down search. Cost’s movements and 

his failure to respond to the officer’s questions supported a 

well-educated “hunch,” but were insufficient to establish 

probable cause required to permit a warrantless seizure of the 

capsules from inside Cost’s pants packet. See e.g., Graham v. 

10
State, 893 S.W.2d 4, 6 (Tex. Ct. App. 1994). Accordingly, we 

hold that the Court of Appeals erred in affirming the judgment 

of the circuit court overruling Cost’s motion to suppress the 

evidence illegally seized from his person under the Fourth 

Amendment of the United States Constitution. 

CONCLUSION 

For these reasons, we will reverse the judgment of the 

Court of Appeals. Because the evidence seized from Cost should 

have been suppressed, there would be insufficient evidence to 

sustain Cost’s conviction for possession of heroin with intent 

to distribute in any retrial. Accordingly, Cost’s conviction 

will be reversed, and the indictment against him will be 

dismissed. Jackson v. Commonwealth, 267 Va. 666, 681, 594 

S.E.2d 595, 603 (2004). 

Reversed and dismissed. 

JUSTICE LEMONS, with whom JUSTICE KINSER joins, dissenting. 

 In this case, it is important to remember that we are not 

dealing with certainties or even a standard requiring proof 

“beyond a reasonable doubt,” rather, we must consider 

probabilities. 

The legal standard of probable cause, as 

the term suggests, relates to probabilities 

that are based upon the factual and practical 

considerations in everyday life as perceived by 

reasonable and prudent persons. The presence 

or absence of probable cause is not to be 

examined from the perspective of a legal 

11
technician. Rather, probable cause exists when 

the facts and circumstances within the 

officer’s knowledge, and of which he has 

reasonably trustworthy information, alone are 

sufficient to warrant a person of reasonable 

caution to believe that an offense has been or 

is being committed. Draper v. United States, 

358 U.S. 307, 313 (1959); Schaum v. 

Commonwealth, 215 Va. 498, 500, 211 S.E.2d 73, 

75 (1975). In order to ascertain whether 

probable cause exists, courts will focus upon 

“what the totality of the circumstances meant 

to police officers trained in analyzing the 

observed conduct for purposes of crime 

control.” Hollis v. Commonwealth, 216 Va. 874, 

877, 223 S.E.2d 887, 889 (1976). 

Taylor v. Commonwealth, 222 Va. 816, 820-21, 284 S.E.2d 833, 836 

(1981). 

Cost gave the officer permission to conduct a “pat-down” 

but did not give permission for the officer to reach into his 

pockets. However, upon conducting the “pat-down” by consent, 

the officer detected “numerous capsules” in Cost’s pocket. In 

Minnesota v. Dickerson, 508 U.S. 366 (1993), the Supreme Court 

discussed the seizure of contraband detected by sense of touch 

during a “pat-down” search. The Court stated: 

If a police officer lawfully pats down a 

suspect’s outer clothing and feels an object 

whose contour or mass makes its identity 

immediately apparent, there has been no 

invasion of the suspect’s privacy beyond that 

already authorized by the officer’s search for 

weapons; if the object is contraband, its 

warrantless seizure would be justified by the 

same practical considerations that inhere in 

the plain-view context. 

Id. at 375-76. 

12
 The officer reached into Cost’s left pants pocket and 

removed a plastic bag containing 20 capsules subsequently 

determined to contain heroin. If the justification for the 

search of Cost’s pocket depended solely upon the “plain feel” of 

a capsule in the pocket, the officer could not lawfully search 

Cost’s pocket. But the justification in this case is based upon 

other circumstances as well. 

 It was immediately apparent to the officer that the items 

in Cost’s pocket were capsules. The totality of the 

circumstances, which a court is required to consider, give 

probable cause that the capsules contained an illegal substance. 

Cost was a passenger in a parked car when the encounter began. 

When the officer approached the car on the passenger side, Cost 

“immediately reached across his body towards his left front 

pants pocket.” The officer asked Cost what he was reaching for, 

and Cost did not reply. The officer directed Cost to “get away 

from the pocket.” Cost disregarded the officer’s direction and 

again reached for his left front pants pocket. Cost was ordered 

to exit the car, whereupon a consensual “pat-down” occurred. 

 The totality of the circumstances included furtive gestures 

toward the pocket where the contraband was located. Furtive 

gestures alone may not be sufficient to establish probable 

cause; however, furtive gestures coupled with other indicia of 

13
criminal activity may suffice to establish probable cause. See

Sibron v. New York, 392 U.S. 40, 66 (1968); 2 Wayne R. LaFave, 

Search and Seizure § 3.6(d), at 351-52 (4th ed. 2004) (“if 

police see a person in possession of a highly suspicious object 

or some object which is not identifiable but which because of 

other circumstances is reasonably suspected to be contraband, 

and [also] observe that person make an apparent attempt to 

conceal that object . . . , probable cause is then present”). 

 The officer detected not one or two capsules, but 

“numerous” capsules. As the evidence demonstrated, there were 

20 capsules in the plastic bag in the pocket. Certainly, it is 

not impossible that someone would carry vitamins or other legal 

medication in capsules in a pocket. But we are not dealing with 

possibilities, we are directed to consider probabilities in this 

analysis. Additionally, we must consider the specialized 

training of the officer who, at the time of trial had made 50 –

60 drug arrests and had specialized training on packaging of 

narcotics. 

 The majority states that it disagrees with the Court of 

Appeals opinion that characterizes Cost’s gestures as “furtive.” 

It was the Commonwealth at trial that characterized Cost’s 

gestures as “furtive.” The trial court ruling must be 

considered in the context of the evidence and the arguments 

advanced by the parties. The Court of Appeals opinion does 

14
exactly what we have stated numerous times is the role of an 

appellate court. Appellate courts are not fact-finders. 

Appellate courts are called upon to determine if the facts are 

sufficient to support a trial court judgment. But an appellate 

court is not permitted to substitute its judgment concerning the 

facts for that of the trial court. Here, the majority engages 

in recharacterization of the facts. 

The majority opinion affirms the principle that a reviewing 

court analyzing a suppression motion must consider the totality 

of the circumstances. But the majority does not apply the 

principle in this case. 

In Ball v. United States, 803 A.2d 971, 972 (D.C. 2002), 

the court reviewed a trial court’s refusal to suppress the 

evidence. In Ball, the defendant had been a passenger in a 

motor vehicle stopped for a traffic infraction. When the 

officer approached the car, the defendant began “to move his 

left hand and he was trying to cover his abdomen area with a 

newspaper which was seated on the seat next to him.” Id. at 

973. Upon directing the defendant to exit the car, he 

“immediately put his hands in his jacket pocket.” Id. The 

officer ordered the defendant to remove his hands from the 

pocket and as the defendant complied, he once again “attempted 

to place his right hand in his right front jacket pocket.” Id. 

Before the encounter was over, the defendant attempted to reach 

15
into the same pocket for a third time. Upon a protective “patdown” for weapons, the officer “felt a large cylinder container 

which [he] thought to be a large medicine bottle,” and “because 

[the defendant] made several attempts to go into his pocket and 

remove it” the officer concluded that it was probable that the 

medicine bottle contained contraband. Id. The court affirmed 

the denial of the motion to suppress based upon the totality of 

the circumstances including the officer’s training in packaging 

of narcotics. The court concluded: 

Viewed against the officer’s experience, 

appellant’s conduct added enough information to 

cross the threshold from reasonable suspicion 

that appellant might have a weapon in his 

jacket pocket to probable cause that he had 

drugs in the medicine bottle felt in the 

pocket. 

Id. at 982. 

In the case of State v. Briggs, 536 S.E.2d 858 (N.C. Ct. 

App. 2000), the Court of Appeals of North Carolina affirmed the 

trial court’s refusal to suppress a cigar holder seized after an 

officer conducted a “pat-down” for weapons and discerned the 

presence of the object in a pocket. Using a totality of the 

circumstances analysis, the court stated: 

Accordingly, we consider the numerous 

facts and circumstances surrounding the 

officer’s seizure of the cigar holder in 

determining whether seizure of the cigar holder 

was lawful. Here, the hour was late and 

defendant was stopped in a "high crime" area. 

The officer had previously arrested the 

16
defendant for possession of controlled 

substances and knew defendant was on probation 

for such an arrest at the time of the stop. 

The officer smelled burned cigar in defendant’s 

vehicle and on defendant, and was aware that 

burning cigars were commonly used to mask the 

smell of illegal substances. Defendant had 

previously stated he did not smoke cigars. His 

eyes were red and glassy, and his behavior 

suggested possible usage of a controlled 

substance. Furthermore, the officer’s 

experience made him aware that cigar holders 

were commonly used to store controlled 

substances. Considering these facts and 

circumstances, [the officer] had sufficient 

information to warrant a person of reasonable 

caution in the belief that the item he detected 

contained contraband. Absent any evidence 

indicating impermissible manipulation of the 

object by the officer, we conclude seizure of 

the cigar holder in this case was lawful. 

Id. at 863-64 (citations omitted). 

 I can summarize it no better than Judge Frank did in his 

opinion in the Court of Appeals: 

While feeling the capsules alone may not 

be sufficient probable cause, the totality of 

the circumstances gave the officer probable 

cause to believe the numerous capsules 

contained illicit drugs. Appellant attempted 

to conceal the drugs, failed to heed the 

officer’s demand that he cease the furtive 

behavior, and failed to respond to the 

officer’s questions. See generally 2 Wayne R. 

LaFave, Search & Seizure § 3.6(f), at 364 (4th 

ed. 2004) (explaining that "refusal to answer 

is one factor which an officer may consider, 

together with evidence that gave rise to his 

prior suspicion, in determining whether there 

are grounds for arrest"). Based on the 

totality of the circumstances, consisting of 

furtive movements and suspicious conduct, 

culminating in the officer feeling numerous 

capsules, which based on the officer’s 

17
18

training and experience contained heroin, the 

officer had probable cause to seize the 

capsules. 

 The trial court did not err in denying 

the motion to suppress. 

Cost v. Commonwealth, 49 Va. App. 215, 227-28, 638 S.E.2d 714, 

719-20 (2006). 

 I would affirm the judgment of the Court of Appeals.