COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Coleman and Bumgardner 

Argued at Salem, Virginia 

TREMAYNE ORTEZE POWELL 

 OPINION BY 

v. Record No. 0545-97-3 JUDGE SAM W. COLEMAN III 

 APRIL 21, 1998 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG 

Richard S. Miller, Judge 

 Philip B. Baker (Joseph A. Sanzone 

Associates, P.C., on brief), for appellant. 

 Marla Graff Decker, Assistant Attorney 

General (Richard Cullen, Attorney General, on 

brief), for appellee. 

 Tremayne Orteze Powell appeals his bench trial conviction 

for possession of marijuana and possession of cocaine. He 

contends: (1) the trial court erred by denying his motion to 

suppress marijuana discovered in a search incident to an unlawful 

arrest, and (2) the evidence is insufficient to prove he 

possessed cocaine. We disagree and affirm the convictions. 

I. BACKGROUND

 City of Lynchburg Police Officers Kevin Hollyfield, J.P. 

Stokes, and another officer were patrolling in an unmarked 

vehicle in a high crime area also known to be an open-air drug 

market. Hollyfield observed appellant and two other men sitting 

on a low wall, approximately eighteen inches high, facing the 

street with their backs to a parking lot. The two men were 

sitting approximately three feet from the appellant. Hollyfield 
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saw appellant place his left hand, which was clenched in a fist, 

behind his back, keeping his hand close to his body as he placed 

it behind him. When appellant brought his hand back in front, 

Hollyfield saw that it was unclenched. Neither of the other two 

men made any motions with their hands. Hollyfield alerted the 

other officers, and they pulled their vehicle up to the curb 

where appellant was sitting. 

 Appellant stood up and began to walk away as Hollyfield 

exited the car. Stokes walked over to the wall and found a small 

brown paper bag containing crack cocaine lying on the ground 

directly below the spot where appellant had been sitting. Stokes 

testified that the bag of drugs was lying six to twelve inches 

"underneath" where appellant's "left thigh" had been when he was 

sitting on the wall. Stokes also testified that there was no 

debris within the immediate area where he found the drugs. 

Stokes did not field test the substance, but, based upon his 

training and experience in investigating nearly two hundred 

cocaine cases, he testified that it had the appearance of 

cocaine. Stokes alerted Hollyfield that he had found cocaine 

behind the wall where appellant had been sitting, and Hollyfield 

arrested appellant. Upon searching appellant incident to the 

arrest, Hollyfield discovered a marijuana cigarette in 

appellant's right front shirt pocket. 

II. SEARCH INCIDENT TO ARREST

 Appellant contends the marijuana was seized pursuant to an 
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unlawful arrest because the officers lacked probable cause to 

arrest him for possessing the cocaine. His contention is without 

merit. 

 "[T]he test of constitutional validity [of a warrantless 

arrest and incidental 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." Bryson v. Commonwealth, 211 Va. 

85, 86-87, 175 S.E.2d 248, 250 (1970) (citing Brinegar v. United 

States, 338 U.S. 160 (1949)). To establish probable cause, the 

Commonwealth must show "'a probability or substantial chance of 

criminal activity, not an actual showing'" that a crime was 

committed. Ford v. City of Newport News, 23 Va. App. 137, 

143-44, 474 S.E.2d 848, 851 (1996) (quoting Illinois v. Gates, 

462 U.S. 213, 243 n.13 (1983)). "In determining whether probable 

cause exists courts will test 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, 876-77, 233 S.E.2d 887, 889 (1976) 

(citation omitted). The issue of whether probable cause existed 

to make a warrantless search involves questions of both law and 

fact and is reviewed de novo on appeal. See McGhee v. 

Commonwealth, 25 Va. App. 193, 197-98, 487 S.E.2d 259, 261 (1997) 

(en banc) (citing Ornelas v. United States, 116 S. Ct. 1657, 1659 

(1996)). 
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 In this case, Hollyfield observed appellant, who was sitting 

in an area known to be an open-air drug market, make a furtive 

hand gesture, as if discarding something from a clenched fist, 

then stand up and walk away as the officers approached. Stokes 

found a bag on the ground immediately behind where appellant had 

been sitting and recognized the contents as having the appearance 

of crack cocaine. He alerted Hollyfield that he had found 

cocaine. Under the circumstances, it was reasonable for Stokes, 

drawing upon his training and experience, to conclude that the 

substance was probably cocaine and for Hollyfield, based on 

Stokes' communication that he found cocaine and his own 

observation of appellant's conduct, to determine that appellant 

probably possessed the cocaine before dropping it behind the wall 

when the officers approached. Accordingly, we find that 

Hollyfield had probable cause to arrest appellant for possession 

of cocaine and that the marijuana was legally seized in a search 

pursuant to a lawful arrest. 

III. SUFFICIENCY OF THE EVIDENCE

 When the sufficiency of the evidence is challenged on 

appeal, we review the evidence in the light most favorable to the 

Commonwealth, granting to it all reasonable inferences fairly 

deducible therefrom. Martin v. Commonwealth, 4 Va. App. 438, 

443, 358 S.E.2d 415, 418 (1987). 

 The present case is factually similar to Collins v. 

Commonwealth, 13 Va. App. 177, 409 S.E.2d 175 (1991). In 
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Collins, police officers approached the defendant as he sat 

sidesaddle in the front seat of his car in a dimly lit parking 

lot. Id. at 178, 409 S.E.2d at 175. Upon seeing the officers, 

Collins got up from his car and "made a throwing motion under the 

vehicle with his right arm." Id. Immediately thereafter, an 

officer illuminated the area under the car with a flashlight and 

discovered a plastic baggie of cocaine. Id. No other items were 

found beneath the vehicle. Id. Despite the fact that the record 

contained no evidence that the officers saw any contraband or 

other object leave Collins' hand, we held that the evidence was 

sufficient to support the trial court's finding that Collins 

threw the drugs under the car. Id. at 179-80, 409 S.E.2d at 176. 

 We found Collins' argument unpersuasive "that the cocaine might 

have already been under his car," noting that the drugs were 

"something of significant value and not something that one is 

likely to have abandoned or carelessly left in the area there." 

Id. at 180, 409 S.E.2d at 176. Accordingly, we found the 

evidence sufficient to prove that Collins constructively 

possessed the cocaine found under his vehicle. Id.

 Here, as in Collins, the circumstantial evidence is 

sufficient to prove that appellant possessed the cocaine. 

Hollyfield testified that appellant placed his clenched left hand 

behind his back and that the hand was unclenched when he returned 

it back in front of him. Appellant's suspicious hand movement 

and the fact that cocaine was found precisely where the appellant 
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would have dropped an object from his left hand behind his back, 

support the inference that appellant possessed the bag of cocaine 

and discarded it on the ground behind him when the officers 

approached. 

 The facts in Gordon v. Commonwealth, 212 Va. 298, 183 S.E.2d 

735 (1971), are distinguishable from the facts in this case. 

There, a police officer approached Gordon on a busy, public 

street while the latter carried a small, manila envelope. Id. at 

299, 183 S.E.2d at 736. Gordon left the street and ran down 

several narrow passageways abutting the street. Id. As the 

officer chased Gordon through the passageways, the officer 

momentarily lost sight of Gordon on a couple of occasions. Id. 

When the officer eventually captured him, Gordon was no longer 

carrying the envelope. Id. Another officer arrived on the scene 

and found a small, manila envelope lying near one of the 

passageways on a grass plot separated from the public street by a 

perforated wall. Id. at 300, 183 S.E.2d at 736. At trial, the 

officer "conceded that he did not see Gordon dispose of the 

envelope." Id. at 299, 183 S.E.2d at 736 (emphasis added). No 

evidence established that Gordon made any sort of throwing or 

dropping motion during his flight. See id. The Supreme Court 

reversed the conviction, holding that there was a "fatal gap in 

the circumstantial evidence adduced against Gordon." Id. at 301, 

183 S.E.2d at 737. Because "[n]o witness was produced who saw 

Gordon dispose of the manila envelope which he carried," id. at 
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300-01, 183 S.E.2d at 737, the evidence failed to exhibit an 

"unbroken chain of circumstances" proving "to the exclusion of 

any other rational hypothesis" that Gordon possessed the drugs in 

the envelope that was found. Id. at 300, 183 S.E.2d at 737 

(citation omitted). Although highly suspicious because the 

officers found an envelope that was similar in size, color, and 

shape to the one that Gordon had earlier possessed, the evidence 

did not prove that Gordon had discarded the envelope or where he 

may have done so. The Court found that the officer could have 

reasonably recovered another manila envelope left by one of the 

several persons gathered along the public street. Id. at 301, 

183 S.E.2d at 737. Accordingly, the Court concluded that "there 

was a break in the chain of evidence" which rendered the evidence 

insufficient to prove beyond a reasonable doubt that Gordon 

possessed the drugs and paraphernalia. Id. at 300-01, 183 S.E.2d 

at 737. 

 In the present case, unlike as in Gordon, there is no "break 

in the chain of [the] evidence." Hollyfield observed appellant 

place his clenched hand behind his back and bring his open hand 

back to his front. Upon learning of Hollyfield's observation, 

Stokes immediately walked to the wall and found the bag of drugs 

directly below where appellant had been sitting. Thus, there was 

no "fatal gap" in the officers' observing appellant's hand 

gesture as if discarding an object from a clenched fist and the 

officer finding the bag of drugs directly behind where appellant 
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was sitting. Accordingly, we cannot say the trial court's 

conclusion that appellant possessed the cocaine was plainly wrong 

or without evidence to support it. 

 For these reasons, we affirm the convictions. 

 Affirmed.
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Benton, J., dissenting. 

 The principle is well established that whenever "a 

conviction is based on circumstantial evidence, 'all necessary 

circumstances proved must be consistent with guilt and 

inconsistent with innocence and exclude every reasonable 

hypothesis of innocence.'" Garland v. Commonwealth, 225 Va. 182, 

184, 300 S.E.2d 783, 784 (1983) (quoting Inge v. Commonwealth, 

217 Va. 360, 366, 228 S.E.2d 563, 567 (1976)). Thus, the Supreme 

Court has ruled that "circumstances of suspicion, no matter how 

grave or strong, are not proof of guilt sufficient to support a 

verdict of guilty . . . [because the] actual commission of the 

crime by the accused must be shown by evidence beyond a 

reasonable doubt to sustain . . . [a] conviction." Clodfelter v. 

Commonwealth, 218 Va. 619, 623, 238 S.E.2d 820, 822 (1977). 

 Although no evidence in this case proved that Tremayne 

Powell ever possessed the bag of cocaine found behind the wall, 

the majority infers from the circumstances that Powell must have 

placed it there. The majority draws that inference even though 

the police officer testified that he did not see anything in 

Powell's hand. The officer merely suspected that Powell's closed 

hand contained something. The lack of evidence proving that 

Powell possessed any item in his hand is a "fatal gap in the 

circumstantial evidence," Gordon v. Commonwealth, 212 Va. 298, 

301, 183 S.E.2d 735, 737 (1971), and manifestly establishes that 

the evidence in this case was insufficient to prove beyond a 
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reasonable doubt that Powell ever possessed the bag of cocaine 

found behind the wall. 

 The majority asserts that the facts in Gordon are 

distinguishable from the facts in this case. I agree. Indeed, 

the facts in Gordon are more inculpatory than the facts in this 

case. In Gordon, a police officer saw the accused retrieve "a 

brownish color, manila color envelope" from between bushes and a 

concrete fence. Id. at 299, 183 S.E.2d at 736. After the 

accused began to run, the officer chased him and saw that he was 

still carrying the envelope. During the chase, the accused 

discarded the envelope. While the officer was capturing and 

arresting the accused, another officer found an envelope on the 

route of the chase. The arresting officer testified that the 

envelope "was the 'same color, size and shape' as the envelope 

which he had seen [the accused] pick up [and hold]." Id. at 300, 

183 S.E.2d at 736. Although the arresting officer saw the 

accused retrieve and run with an envelope that was the "same 

color, size and shape" as the envelope that contained the drugs, 

the Supreme Court held that the trier of fact impermissibly drew 

an inference that the accused had disposed of the envelope that 

was recovered. Id. See also Craig v. Commonwealth, 215 Va. 260, 

262, 208 S.E.2d 744, 746 (1974) (holding that an officer's 

suspicion that a bag of marijuana was thrown from a truck when 

the truck stopped at the bag's location was "not sufficient to 

. . . exclude all reasonable conclusions inconsistent with . . . 
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guilt"). 

 The evidence in this case is more speculative. From a 

distance of a half block, a police officer saw Powell and two 

other men sitting on a wall at the intersection of two streets. 

The two men were sitting to the left of Powell. Although the 

officer testified that Powell moved his closed left hand behind 

his back, the officer saw no object in Powell's hand. Powell 

denied that the cocaine was his or that he put it behind the 

wall. The police officer exited his vehicle, told the two men 

who had been on the wall with Powell to leave, and did not 

question them. 

 The only evidence offered by the Commonwealth that did not 

require the trier of fact to speculate, conjecture, or surmise 

while assessing Powell's guilt or innocence was evidence of 

opportunity. Yet, it is well established that "mere opportunity 

to commit an offense raises only 'the suspicion that the 

defendant may have been the guilty agent; and suspicion is never 

enough to sustain a conviction.'" Christian v. Commonwealth, 221 

Va. 1078, 1082, 277 S.E.2d 205, 208 (1981) (quoting Simmons v. 

Commonwealth, 208 Va. 778, 783, 160 S.E.2d 569, 573 (1968)). 

"Suspicious circumstances, including proximity to a controlled 

drug, are insufficient to support a conviction." Behrens v. 

Commonwealth, 3 Va. App. 131, 135, 348 S.E.2d 430, 432 (1986). 

"[E]ven probability of guilt is not sufficient" to support a 

conviction. Gordon, 212 Va. at 300, 183 S.E.2d at 737. The two 
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men sitting on the wall beside Powell, "assuming they possessed 

illegal drugs, would have had the same motive and the same 

opportunity, as did [Powell], to rid themselves of the drugs" by 

placing them behind the wall. Craig, 215 Va. at 262, 208 S.E.2d 

at 745. 

 Furthermore, where, as here, the evidence "'is equally 

susceptible of two interpretations one of which is consistent 

with the innocence of the accused, [the trier of fact] cannot 

arbitrarily adopt that interpretation which incriminates [the 

accused].'" Harrell v. Commonwealth, 11 Va. App. 1, 11, 396 

S.E.2d 680, 685 (1990) (quoting Corbett v. Commonwealth, 210 Va. 

304, 307, 171 S.E.2d 251, 253 (1969)). The officer who detained 

Powell testified that the corner where the three men were sitting 

on the wall was an "open air drug market." Thus, a reasonable 

hypothesis flows from the evidence that someone other than Powell 

placed the bag of cocaine on the ground behind the wall. "There 

 . . . exists the possibility that the bag was present [on the 

ground] prior to the time" the officers arrived. Craig, 215 Va. 

at 262, 208 S.E.2d at 745. Certainly, the evidence does not 

establish the innocence of the two other men who also were 

sitting on the wall within three feet of the bag of cocaine in an 

area known to be an "open air drug market." This evidence falls 

short of proving beyond a reasonable doubt that the drugs found 

behind the wall were ever actually or constructively possessed by 

Powell. "Whenever the evidence leaves indifferent which of 
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several hypotheses is true, or merely establishes only some 

finite probability in favor of one hypothesis, such evidence does 

not amount to proof of guilt beyond a reasonable doubt." Sutphin 

v. Commonwealth, 1 Va. App. 241, 248, 337 S.E.2d 897, 900 (1985). 

 The majority's reliance on Collins v. Commonwealth, 13 Va. 

App. 177, 409 S.E.2d 175 (1991), cannot overcome the deficiency 

of proof that is demonstrable under the Gordon standard. The 

Collins decision fails to address Gordon's holding. Moreover, 

for the reasons I have previously stated in Collins, see 13 Va. 

App. at 180-81, 409 S.E.2d at 176-77 (Benton, J., dissenting), I 

believe that decision was wrongly decided. In addition, if 

Collins must be distinguished, the absence of evidence in Collins

proving that the accused was in an "open air drug market" and in 

the presence of other people is sufficient to distinguish the 

Collins decision. 

 Because this conviction is impermissibly based on 

speculation and conjecture, see Wright v. Commonwealth, 217 Va. 

669, 670, 232 S.E.2d 733, 734 (1977), it should be reversed. I 

dissent.