COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bray and Annunziata 

Argued at Richmond, Virginia 

KAREEN LATIF EDWARDS 

 OPINION BY 

v. Record No. 1293-01-1 JUDGE ROSEMARIE ANNUNZIATA 

 AUGUST 27, 2002 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

Junius P. Fulton, III, Judge 

 William P. Robinson, Jr. (Robinson, Neeley & 

Anderson, on brief), for appellant. 

 Marla Graff Decker, Assistant Attorney 

General (Jerry W. Kilgore, Attorney General, 

on brief), for appellee. 

 Kareen Latif Edwards pled guilty to possession of cocaine 

with the intent to distribute, conditioned upon his ability to 

appeal the trial court's order denying his motion to suppress 

evidence. He was convicted by the trial court and sentenced to 

twenty years in prison, with fifteen years suspended. Edwards 

appeals from the trial court's denial of his motion to suppress 

evidence. For the reasons that follow, we affirm. 

Background

 On February 20, 2000, Officer Michael Reardon investigated 

Room 256 at the Econo Lodge at 1111 East Ocean View in Norfolk 

based on an informant's tip that two individuals were selling 
narcotics from that location, one of whom was known as "E." 

When Officer Reardon had "just about finished up" his search of 

the room, Edwards knocked on the door and entered carrying a 

clear plastic bag of women's white tube socks. Edwards 

identified himself as "E." 

 Officer Reardon told Edwards that he understood Edwards was 

a supplier of cocaine to a variety of locations in the Ocean 

View area, including three locations at the motel. The officer 

then asked Edwards for consent to search his person. While 

holding the bag of socks, Edwards responded, "[s]ure, no 

problem." 

 Edwards put the bag of socks on the bed and cooperated with 

the search. Officer Reardon searched him but did not find any 

narcotics. Reardon picked up the bag and asked the defendant 

what he was doing with a bag of women's white tube socks. 

Reardon immediately noticed a lumpy object inside the tube 

socks. He looked inside the bag and found two plastic sandwich 

bags inside the socks. One bag contained fifty zip-lock baggies 

of crack cocaine, and the other contained twenty-five zip-lock 

baggies of crack cocaine. 

 Edwards moved to suppress the evidence found in the socks 

on the ground that the search of the bag violated his Fourth 

Amendment right to be protected against unreasonable searches. 

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The trial court denied his motion, finding that he consented to 

the search. 

Analysis

 Edwards appeals the trial court's denial of his motion to 

suppress the evidence of crack cocaine found in the baggies.1 

Specifically, he contends that the warrantless search was 

unreasonable because his consent to search his person did not 

extend to the bag. We disagree. 

 On appeal of a ruling on a motion to suppress, we view the 

evidence in the light most favorable to the party prevailing 

below, granting to it all reasonable inferences fairly deducible 

therefrom. Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 

407 S.E.2d 47, 48 (1991). "[W]e are bound by the trial court's 

findings of historical fact unless 'plainly wrong' or without 

evidence to support them[,] and we give due weight to the 

inferences drawn from those facts by resident judges and local 

law enforcement officers." McGee v. Commonwealth, 25 Va. App. 

193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing Ornelas 

v. United States, 517 U.S. 690, 699 (1996)). However, we review 

de novo the trial court's application of defined legal 

standards. Ornelas, 517 U.S. at 699. "Both the presence of 

 1

 The Commonwealth also argues that the officer had probable 

cause to arrest Edwards and, therefore, lawfully searched the 

bag. Because the trial court did not consider this argument, we 

do not address it on appeal. 

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consent to search and any related limitations are factual issues 

for the trial court to resolve after consideration of the 

attendant circumstances." Bynum v. Commonwealth, 23 Va. App. 

412, 418, 477 S.E.2d 750, 753 (1996). 

 "A consensual search is reasonable if the search is within 

the scope of the consent given." Grinton v. Commonwealth, 14 

Va. App. 846, 850, 419 S.E.2d 860, 862 (1992). 

The United States Supreme Court has 

articulated the standard for measuring the 

scope of an individual's consent under the 

Fourth Amendment to be "'objective' 

reasonableness—what would the typical person 

have understood by the exchange between the 

officer and the suspect?" Florida v. 

Jimeno, 500 U.S. 248, 251 (1991). 

Furthermore, the Court stated that, "[t]he 

scope of a search is generally defined by 

its expressed object." Id. 

Bolda v. Commonwealth, 15 Va. App. 315, 317, 423 S.E.2d 204, 206 

(1992) (quoted in Bynum, 23 Va. App. at 418, 477 S.E.2d at 753). 

"'A suspect may of course delimit as he chooses the scope of the 

search to which he consents. But if his consent would 

reasonably be understood to extend to a particular container, 

the Fourth Amendment provides no grounds for requiring a more 

explicit authorization.'" Lawrence v. Commonwealth, 17 Va. App. 

140, 145, 435 S.E.2d 591, 594 (1993) (quoting Jimeno, 500 U.S. 

at 252). 

 Whether consent to search one's person includes containers 

such as a purse or bag held by that person is a matter of first 

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impression in Virginia. We are, however, guided by the 

reasoning of several of our sister courts considering the import 

of the term "person" in the context of the search of a person 

pursuant to a warrant. For example, in United States v. Graham, 

the Seventh Circuit Court of Appeals concluded that the 

defendant's shoulder purse could be considered part of "his 

person." See 638 F.2d 1111, 1114 (7th Cir. 1981) (holding that 

search of defendant's purse, which he carried, was authorized by 

a warrant to search "his person"). In holding that such objects 

are within the scope of the search of a person, the Court noted: 

The human anatomy does not naturally contain 

external pockets, pouches, or other places 

in which personal objects can be 

conveniently carried. To remedy this 

anatomical deficiency clothing contains 

pockets. In addition, many individuals 

carry purses or shoulder bags to hold 

objects they wish to have with them. 

Containers such as these, while appended to 

the body, are so closely associated with the 

person that they are identified with and 

included within the concept of one's person. 

To hold differently would be to narrow the 

scope of a search of one's person to a point 

at which it would have little meaning. 

Id. Several other jurisdictions have similarly concluded that 

the search of a person includes containers held by the person. 

See United States v. Robertson, 833 F.2d 777, 784 (9th Cir. 

1987) (holding that search of backpack constituted a search of 

defendant's person and was not authorized by search warrant for 

premises); Minnesota v. Wynne, 552 N.W.2d 218, 220 (Minn. 1996) 

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(concluding that search of defendant's purse constituted a 

search of her person); Wisconsin v. Andrews, 549 N.W.2d 210, 

216, 218 (Wis. 1996) (noting that items worn by, or appended to 

the body of, a person are included within the concept of the 

person and, therefore, are not encompassed by a search warrant 

that does not specifically authorize a search of the person); 

Hayes v. Georgia, 234 S.E.2d 360, 361-62 (Ga. Ct. App. 1977) 

(holding that search of appellant's suitcase, found on the floor 

next to the couch on which he was sleeping, was an 

unconstitutional search of his person and was not authorized by 

a search of the residence); cf. United States v. Branch, 545 

F.2d 177, 182 (D.C. Cir. 1976) (holding that search of shoulder 

bag was not authorized by search warrant for apartment). 

 We, therefore, hold that the scope of consent to search 

one's person encompasses such items. Although the cases we find 

persuasive on the issue before us were decided in the context of 

a search pursuant to a search warrant, and not pursuant to 

consent, we find nothing in the reasoning or the holdings of the 

courts deciding the issue that suggests the analogy is inapt. 

Indeed, the circumstances requiring a definition of "the person" 

in the context of conducting a search pursuant to a search 

warrant are comparable to those in which the police acted in 

this case. In both instances, the officers had to determine 

whether the scope of the permitted search--one permitted on the 

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basis of a search warrant of "the person,"--the other pursuant 

to consent to search of "the person," included bags and other 

such items appended or otherwise closely associated with the 

individual. In both instances, the acting officer was presented 

with the need to determine whether the authority granted to 

search "the person" extended to such items. The different 

premises underlying the authority to search the person do not 

change the ultimate question to be resolved, to wit, the scope 

of the term, "the person." 

 In this case, Edwards was holding the bag of women's white 

tube socks when he consented to the search of his person. Thus, 

the bag was "appended to," or intimately connected with, his 

person. Cf. Jean-Laurent v. Commonwealth, 34 Va. App. 74, 80, 

538 S.E.2d 316, 319 (2000) (search of defendant's suitcase was 

not authorized by defendant's consent to "search his person," 

where he consented while in a bus terminal and his suitcase 

remained on the bus). He also understood that the object of the 

search was evidence related to cocaine distribution, which could 

possibly be found within the bag. See Jimeno, 500 U.S. at 251 

("The scope of a search is generally defined by its expressed 

object."). Thus, the trial court's determination that Officer 

Reardon understood Edwards' consent to include the container 

that he carried was reasonable and not plainly wrong. 

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 To the extent that Edwards thereafter made the scope of his 

consent less clear by placing the bag on the bed before the 

officer began the pat-down, his passive acquiescence while the 

officer searched the bag affirmed that the bag was within the 

scope of his consent. See Grinton, 14 Va. App. at 451, 419 

S.E.2d at 863 ("The scope of a search may be further defined 

during the course of the search by the passive acquiescence of 

the person whose property is being searched."); United States v. 

Rison, 946 F.2d 1497, 1501 (10th Cir. 1991); United States v. 

Espinosa, 782 F.2d 888, 892 (10th Cir. 1986) ("Failure to object 

to the continuation of the search . . . may be considered an 

indication that the search was within the scope of the 

consent."); McNair v. Commonwealth, 31 Va. App. 76, 83, 521 

S.E.2d 303, 307 (1999) (holding that defendant's failure to 

withdraw consent to search for "criminal activity" in his home 

included the top floor because he did not withdraw his consent 

to search when he observed the officer go upstairs). In 

Grinton, the defendants expressly consented to a search of "the 

contents and containers" of their vehicle. 14 Va. App. at 851, 

419 S.E.2d at 863. Although this consent did not expressly 

include the trunk, they did not object or withdraw consent when 

the officer searched the trunk of the car. Id. We thus held 

that the defendants' acquiescence in the search of the trunk 

clarified that their consent included the trunk. See id. 

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 Likewise in Rison, the defendant claimed that the trooper 

exceeded the scope of his consent to search "the glove box, the 

trunk and the remainder of his vehicle" when the trooper 

searched underneath the back seat of the vehicle. 946 F.2d at 

1501. The defendant, however, standing only five feet from the 

automobile during the search, did not object to the search of 

the back seat. On these facts, the court held that "it would be 

reasonable to conclude that defendant's acquiescence indicated 

that the search was within the scope of the consent." Id. 

 Similarly, Edwards, after consenting to the search of "his 

person," which could reasonably be understood to include the bag 

he held, stood in close proximity to the officer when he began 

to search the bag and did not object, withdraw his consent, or 

otherwise limit the scope of his consent. See Grinton, 14 

Va. App. at 851, 419 S.E.2d at 863 (holding that once initial 

consent to search has been given, "passive acquiescence" 

broadens the scope of search); McNair, 31 Va. App. at 83, 521 

S.E.2d at 307 (holding that failure to withdraw consent was 

evidence that defendant consented to search in progress); cf.

Hughes v. Commonwealth, 31 Va. App. 447, 458, 514 S.E.2d 155, 

161 (2000) (en banc) (holding that acquiescence to a strip and 

body cavity search did not extend the scope of defendant's 

consent to search his person because of the highly intrusive 

nature of the search). Edwards' initial consent to the search 

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of his person, together with his subsequent passive acquiescence 

to the search of his bag, would lead a reasonable officer to 

believe that Edwards' consent to the search included the bag he 

carried. Therefore, we hold that the trial court did not err in 

denying Edward's motion to suppress and affirm his conviction. 

Affirmed. 

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Elder, J., dissenting. 

I would hold, as a matter of law, that the search of 

Edwards (appellant) exceeded the scope of his consent to search. 

I also would hold that the search was not valid as incident to a 

lawful arrest because the officer lacked probable cause to 

believe appellant had committed a narcotics offense. Thus, I 

would hold the trial court's denial of the motion to suppress 

was erroneous, and I would reverse and dismiss the challenged 

conviction. 

A. 

SCOPE OF CONSENT TO SEARCH 

"A consensual search is reasonable if the search is within 

the scope of the consent given." Grinton v. Commonwealth, 14 

Va. App. 846, 850, 419 S.E.2d 860, 862 (1992). Consent may be 

express or implied. Jean-Laurent v. Commonwealth, 34 Va. App. 

74, 79, 538 S.E.2d 316, 318 (2000). The scope of the consent is 

viewed under a standard of "'objective' reasonableness--what 

would the typical reasonable person have understood by the 

exchange between the officer and the suspect?" Florida v. 

Jimeno, 500 U.S. 248, 251, 111 S. Ct. 1801, 1803-04, 114 

L. Ed. 2d 297 (1991). "[T]he State has the burden of proving 

the necessary consent was obtained . . . ." Florida v. Royer, 

460 U.S. 491, 497, 103 S. Ct. 1319, 1324, 75 L. Ed. 2d 229 

(1983). 

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"Both the presence of consent to search and any related 

limitations are factual issues for the trial court to resolve 

after consideration of the attendant circumstances." Bynum v. 

Commonwealth, 23 Va. App. 412, 418, 477 S.E.2d 750, 753 (1996). 

Nevertheless, we review de novo the trial court's application of 

the legal principles relating to consent searches to its factual 

findings on the issue of consent and any related limitations. 

Ornelas v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 

1659, 134 L. Ed. 2d 911 (1996). We also may set aside factual 

findings if they are plainly wrong or without evidence to 

support them. E.g., McGee v. Commonwealth, 25 Va. App. 193, 

198, 487 S.E.2d 259, 261 (1997) (en banc). 

I agree that a suspect may further define the scope of a 

search by his "passive acquiescence" while the search is 

underway. Grinton, 14 Va. App. at 451, 419 S.E.2d at 863. 

However, because the Commonwealth bears the burden of proving 

the necessary consent, see Royer, 460 U.S. at 497, 103 S. Ct. at 

1324, "passive acquiescence," standing alone, is insufficient to 

broaden the scope of a search where the suspect's original 

consent unambiguously excluded a particular item or items. As 

the majority acknowledges, the Fourth Amendment does not require 

explicit authorization to search a particular container if "[a 

suspect's original] consent would reasonably be understood to 

extend to [that] particular container." Jimeno, 500 U.S. at 

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252, 111 S. Ct. at 1804. As Professor Wayne R. LaFave has 

observed in the context of premises searches, "the boundaries of 

the place referred to mark the outer physical limits of the 

authorized search." 3 Wayne R. LaFave, Search and Seizure

§ 8.1(c), at 612 (3d ed. 1996). I see no reason why this 

principle should not apply equally to searches of the person. 

Here, appellant's express consent applied only to a search 

of "his person." "The burden was upon the officer to obtain 

consent [covering the bag he wished to search], not on 

[appellant] to affirmatively deny consent." Jean-Laurent, 34 

Va. App. at 80, 538 S.E.2d at 319 (holding tacit consent to 

search of person was insufficient to prove consent to search 

bags, where bags were not in defendant's actual possession, 

defendant merely pointed out bags at officer's request, and 

officer never specifically asked for consent to search bags). 

The mere fact that the object of the officer's search was 

narcotics, that appellant was aware of this fact when he 

consented to the search, and that narcotics could have been 

hidden in the plastic bag appellant was carrying did not 

automatically expand the scope of appellant's consent when 

Officer Reardon expressly requested consent to search only 

appellant's "person" and appellant set the bag down before the 

search began. Although the test for determining the scope of a 

suspect's consent is an objective one, Officer Reardon indicated 

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his subjective understanding that the scope of appellant's 

consent did not cover the bag of socks when he testified that 

his "search of [appellant's] person" yielded nothing 

incriminating and that he did not ask for consent to search the 

bag of socks. 

The cases cited by the majority do not support the 

conclusion that appellant's consent to a search of his person 

necessarily included consent to a search of the bag of socks. 

As the majority concedes, this issue is one of first impression 

in Virginia, and even the cases from other jurisdictions upon 

which the majority relies involved construction "of the term 

'person' in the context of [(1)] searching 'the person' pursuant 

to a warrant" for that person or (2) searching the belongings of 

a nonresident visitor pursuant to a warrant for the premises on 

which the person was found. See United States v. Graham, 638 

F.2d 1111, 1114 (7th Cir. 1981) (holding that "a shoulder purse 

carried by a person at the time he is stopped lies within the 

scope of a warrant authorizing the search of his person"); see 

also United States v. Branch, 545 F.2d 177, 182-83 (D.C. Cir. 

1976) (noting premises warrant did not validate search of 

shoulder bag in possession of person who arrived on premises 

after search had begun but that "such personal items as [a] 

shoulder bag" or "a wallet and paper bag, passed by one occupant 

of the residence to the other," "may, in some circumstances, be 

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found to be within the ambit of a premises search warrant"); 

United States v. Robertson, 833 F.2d 777, 778, 784 (9th Cir. 

1987) (applying principle that containers closely associated 

with one's person require warrant specifically authorizing their 

search to invalidate search of backpack carried by defendant, 

who was leaving house when officers arrived to execute arrest 

warrant for a third party, where premises warrant police secured 

after seizing defendant's backpack did not specifically 

authorize search of defendant or her backpack); State v. Wynne, 

552 N.W.2d 218, 220 (Minn. 1996) (relying on Graham to 

invalidate search of purse taken from person arriving outside 

residence for which police had premises warrant after search 

already had commenced); State v. Andrews, 549 N.W.2d 210, 

215-16, 218 (Wis. 1996) (relying in part on Graham to hold that 

police executing premises warrant may not search items "worn by 

or in the physical possession of persons whose search is not 

authorized by the warrant" (footnote omitted)); Hayes v. State, 

234 S.E.2d 360, 361-62 (Ga. Ct. App. 1977) (holding search of 

suitcase found next to man sleeping on couch was 

unconstitutional where officers had warrant for particular 

apartment and its occupant and failed, prior to search, to take 

reasonable steps to determine whether suitcase belonged to 

occupant named in warrant or to nonresident visitor). 

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The Seventh Circuit Court of Appeals reasoned in Graham, 

relied upon by the majority, that excluding "[c]ontainers . . . 

appended to the body" from the scope of a warrant for the person 

"would be to narrow the scope of a search of one's person to a 

point at which it would have little meaning." 638 F.2d at 1114. 

The court in Graham specifically characterized the question at 

issue as whether "a shoulder purse carried by a person at the 

time he is stopped lies within the scope of a warrant 

authorizing the search of his person." Id. Accepting the 

court's holding in Graham as proper when applied to searches 

supported by warrants, I nevertheless would not apply such 

reasoning to consent searches. As one jurist has observed, 

[A] shoulder bag or purse has been held to 

fall within a warrant for the search of a 

person in a case where the court refused to 

"narrow the scope" of the warrant and 

admitted all the evidence obtained. 

[Graham, 638 F.2d at 114]. But that, under 

the perspective of upholding a search [made 

pursuant to a warrant], a bag is personal 

does not prevent it from being seen under 

another perspective as distinct from the 

person. 

Robertson, 833 F.2d at 788 (Noonan, C.J., dissenting) (emphasis 

added) (rejecting majority's conclusion equating search of 

backpack with search of "pocket on a pair of pants on a person" 

and arguing correct result would be to uphold admission of 

contents of backpack found on premises pursuant to search 

warrant for "formulas for making methamphetamine"); cf. Graham, 

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638 F.2d at 1114 (noting "defendant is mistaken in his 

contention that the rationale used to define the scope of a 

search incident to an arrest is equally applicable in defining 

the scope of a search of the person authorized by a warrant"). 

 Virginia law expressly provides that, in the absence of a 

search warrant or probable cause coupled with exigent 

circumstances, see, e.g., Jefferson v. Commonwealth, 27 Va. App. 

1, 16, 497 S.E.2d 474, 481 (1998), the Commonwealth bears the 

burden of proving a suspect has consented to the search 

conducted, and a court evaluating whether the search exceeded 

the scope of the consent must determine what "the typical 

reasonable person [would] have understood by the exchange 

between the officer and the suspect," Jimeno, 500 U.S. at 251, 

111 S. Ct. at 1803-04. What a magistrate envisions when issuing 

a warrant for the search of a person, and, more importantly, 

what the Constitution permits under the language of that 

warrant, may be very different from what "the typical reasonable 

person [would] have understood" when consenting to a search of 

one's person. The majority cites not a single case dealing with 

the meaning of "person" within the context of a consent search. 

Because the Commonwealth bears the burden of proving consent, 

cases dealing with the construction of a warrant authorizing the 

search of a person or a particular premises simply are not 

persuasive. 

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Finally, the additional cases cited by the majority are 

distinguishable from appellant's case and do not support the 

conclusion that appellant's mere failure to object to Officer 

Reardon's picking up and searching the bag proved his original 

consent was intended to cover the bag. For example, in Grinton, 

the defendants consented to a search of "the contents and 

containers" of their vehicle without mention of the vehicle's 

trunk. 14 Va. App. at 850-51, 419 S.E.2d at 862-63. In 

Grinton, because the defendants failed to object as the search 

progressed and because the challenged area of the car could 

reasonably be construed to fall within the scope of the 

defendants' original consent, we held the challenged search 

valid. Id.; see McNair v. Commonwealth, 31 Va. App. 76, 82-85, 

521 S.E.2d 303, 306-08 (1999) (en banc) (holding that where 

defendant contacted police to report robbery in progress, said 

robbers might still be in his residence, allowed officers to 

search his two-level residence, and did not object when an 

additional officer went upstairs to "search[] for clues," search 

of second level for clues was within scope of defendant's 

original consent); see also United States v. Rison, 946 F.2d 

1497, 1500-01 (10th Cir. 1991) (holding that where defendant 

consented to search of "the glove box, the trunk and the 

remainder of his vehicle" and stood by without objecting when 

trooper searched beneath back seat of vehicle, "it [was] 

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reasonable to conclude that defendant's acquiescence indicated 

that the search was within the scope of the consent"); United 

States v. Espinosa, 782 F.2d 888, 892-93 (10th Cir. 1986) 

(holding that where defendant consented to search of his car and 

stood by as agent conducted a "thorough and systematic search" 

which included removal of vehicle's back seat and raising of 

car's rear quarter panel, defendant's failure to object to 

search indicated search was within scope of consent). 

In appellant's case, by contrast, the bag could not 

reasonably be construed to fall within the scope of appellant's 

original consent. Assuming appellant could have given implied 

consent to a search of the bag, in addition to express consent 

to a search of his person, by handing the bag directly to 

Officer Reardon, see United States v. Rojas, 906 F. Supp. 120, 

128 (E.D.N.Y. 1995), appellant did not do so. Instead, he set 

the bag on the bed prior to the search of his person. Under 

these facts, I would hold that appellant's consent to a search 

of his person, coupled with his mere failure to object to the 

search of the bag, was insufficient to meet the Commonwealth's 

burden of proving consent. Accordingly, I conclude the trial 

court erred in holding appellant's consent to the search 

supported its denial of the motion to suppress. 

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B. 

PROBABLE CAUSE TO ARREST 

The evidence also fails to support the second theory 

advanced by the Commonwealth, that the search of appellant was 

constitutional because Officer Reardon had probable cause to 

arrest appellant prior to conducting the search. See, e.g., 

Carter v. Commonwealth, 9 Va. App. 310, 312, 387 S.E.2d 505, 506 

(1990).2

Where an anonymous informant provides a detailed, 

predictive tip and police officers are able to corroborate 

suspicious circumstances "ordinarily not easily predicted," the 

evidence, taken as a whole, may be sufficient to provide 

probable cause. See Illinois v. Gates, 462 U.S. 213, 242-46, 

103 S. Ct. 2317, 2334-36, 76 L. Ed. 2d 527 (1983) (involving 

 2

 The Commonwealth made this argument in the trial court and 

on brief on appeal. The fact that the trial court concluded 

appellant consented to the search and, thus, did not reach the 

probable cause issue does not prevent us from considering that 

issue on appeal where no further factual findings are necessary. 

See Driscoll v. Commonwealth, 14 Va. App. 449, 451-52, 417 

S.E.2d 312, 313 (1992) (holding that appellate court may affirm 

ruling where trial court reached right result for wrong reason, 

as long as alternate basis for affirmance was presented to trial 

court and no further factual findings are necessary); see also

Hancock v. Commonwealth, 21 Va. App. 466, 469, 465 S.E.2d 138, 

140 (1995) (where trial court applied erroneous intent standard 

in convicting accused for possession of firearm by convicted 

felon, considering, without discussing authority to do so, 

whether evidence was sufficient to prove requisite intent and 

reversing based on holding, as a matter of law, that it did not 

prove requisite intent). 

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probable cause for search warrant). By contrast, when an 

officer receives an anonymous tip that a certain individual is 

selling drugs at a particular location and the officer confirms 

that a person matching that description is in the specified 

location with others but the officer observes no behavior which 

indicates drug distribution, the officer lacks probable cause 

for an arrest. Carter, 9 Va. App. at 313, 387 S.E.2d at 507; 

see also Hardy v. Commonwealth, 11 Va. App. 433, 435-36, 399 

S.E.2d 27, 29 (1990). 

Applying these principles here, I would hold that Officer 

Reardon lacked probable cause to arrest appellant before he 

searched the bag of socks. Although this case did not involve 

observations of people engaged in innocent behavior on a public 

street like in Hardy and Carter, the anonymous informant's tip 

nevertheless included mostly innocent details which likely were 

easily observable to anyone watching the specified motel room 

for a brief period of time. Further, the tip was not truly 

predictive in that the informant said merely that a person named 

E. was supplying cocaine to the motel room but did not indicate 

when E. would arrive or leave the room. 

Finally, the information Officer Reardon gained on his own 

in a search of the motel room with the occupant's consent was 

insufficient to provide probable cause under the 

totality-of-the-circumstances test. Although Officer Reardon 

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testified that the presence of a "bunch of plastic baggies" in 

the room was consistent with narcotics use or distribution and 

that the presence of $250 cash in the Bible was "suspicious," 

nothing linked appellant to the plastic baggies or cash other 

than his subsequent arrival in the room. Appellant was 

cooperative and engaged in no furtive or unusual behavior until 

Officer Reardon picked up the bag of socks. Thus, the 

information known to Officer Reardon at the time he seized and 

searched the bag of socks was sufficient, at best, to provide 

him with reasonable suspicion for an investigative detention, 

not with probable cause to arrest. See, e.g., Alabama v. White, 

496 U.S. 325, 330-32, 110 S. Ct. 2412, 2416-17, 110 L. Ed. 2d 

301 (1990). Because the tip was not sufficiently predictive and 

Officer Reardon's independent investigation yielded only minimal 

corroborative evidence relating to appellant, Officer Reardon 

lacked probable cause to arrest appellant at the time he seized 

and searched the bag of socks. 

For these reasons, I would hold the trial court erroneously 

denied the motion to suppress, and I would reverse and dismiss 

appellant's conviction. Therefore, I respectfully dissent.

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