COURT OF APPEALS OF VIRGINIA

Present: Judges Elde r, Beales and Powell Argued at Alexandria, Virginia

JAMES EDWARD PERRY OPINION BY v. Record No. 0945-08-4 J UDGE RANDOLPH A. BEALES NOVEMBER 3, 2009 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF ARLINGTON COUNTY Benjamin N.A. Kendrick, Judge 1 Charles Burnham, Assi stant Public Defender (Office of the Public Defender, on briefs), for appellant. John W. Blanton, Assistant At torney General (W illiam C. Mims, Attorney General, on brief), for appellee.

A jury convicted James Edward Perry (appellant) of possession of phencyclidine (PCP) pursuant to Code § 18.2-250 and fi ned him $2,500. On appeal, appe llant argues that the trial court

erred when it denied his motion to suppress the drugs fo und by the police during a search of his person. Specifically, appellant contends that the trooper who search ed him did not have a reasonable suspicion that he was armed and dangerous , and, therefore, the tr ooper’s actions violated the Fourth Amendment principles as established in Terry v. Ohio , 392 U.S. 1 (1968) . Alternatively, he also contends that, even if the pat-down sear ch for weapons was valid, the trooper ex ceeded the scope of such a search as established in Terry . Finally, appellant contends that his eventual consent

to the removal of a vial from his pocket did not cure the trooper’s violations of the principles in

1 Judge Kendrick presided over the trial and sentencing of appellant. Judge William T. Newman, Jr., presided over the suppression hearing and denied appellant’s motion to suppress.- 2 - Terry , and, therefore, the vial was s till not admissible into evidence. We find that the trial court did not err in denying appellant’s mo tion to suppress, an d, therefore, we affirm his conviction.

BACKGROUND At 2:00 a.m. on October 15, 2006, Trooper Weidh aas was traveling down Interstate 66 in Arlington County. As he drove along, the troope r spotted a silver car parked on the right shoulder of the interstate, in a well-lit area. Trooper Weidhaas pulled over, parked behind the silver car, and got out of his patrol vehicle. As Trooper Weidhaas walked toward the car, he noticed that the windows and the sunroof of the silver car were open. Before he reached the car, the trooper “detected a strong odor of marijuana coming from” the car. Based on th is smell of drugs, the officer stated that he became concerned that the passengers might have guns.

Three men were in the silver car – appellant sat in the back seat, Maurice Sprurgeon (Sprurgeon) sat in the front passenger seat, and Va ldemere Perry (Valdemere) sat in the driver’s seat. Trooper Weidhaas approached Valdemer e first and asked for his information. Upon checking his driving record, the trooper discovered that Valdem ere’s license was suspended. The trooper then began checking to see if any of the passengers could legally dr ive the car. Around this time, at least one other trooper arrive d at the scene and took control of Valdemere. Trooper Weidhaas then turned his attenti on to Sprurgeon. Sprurgeon was not “very coherent” and “looked visibly impaired.” His reactions were slow a nd unsteady, and he was non-responsive. Trooper Weidhaas thought Sp rurgeon might be under the influence of marijuana or PCP. Based on his training and ex perience, the trooper believed that persons under the influence of PCP were inclined to suddenly attack and to ignore pai n, such that they will ignore any officer’s attempts to restrain them. If Sprurgeon was under the influence of PCP, then the trooper was concerned that he presented a significant danger to the officers.- 3 - Trooper Weidhaas asked Sprurgeon to step out of the car, and, as he did so, Sprurgeon dropped a small vial onto the ground by the car. Th e vial’s cap came off, and the trooper could see a dark green plant material inside the vial that looked like marijuana. The trooper thought the marijuana was treated with something like PCP. The trooper arrested Sprurgeon and read his Miranda rights to him. Trooper Weidhaas testified at the suppression hearing that Sprurgeon then admitted that he had smoked PCP that evening. The trooper did a field te st of the substance in the vi al, and it tested positive for marijuana and PCP. After dealing with Sprurgeon, Trooper Weidhaas approached appellant. Appellant was in “the exact same” condition as Sprurgeon, i.e., “v isibly impaired,” “[n]ot very coherent,” unsteady on his feet, and non-responsive. The tro oper believed appellant had also used PCP. During the suppression hearing, appe llant’s counsel conceded that appellant was clearly “under the influence of something” when Trooper Weidhaas approached him. After asking appellant to ge t out of the car, Trooper Weidh aas did a pat-down search of him for weapons. During the suppression hearin g, the trooper described how he used his hands during the pat-down search. He explained that, when he reache d appellant’s front pocket, the trooper felt and saw a bulge that “was consistent with” the vial that Sprurgeon had dropped on the ground. Trooper Weidhaas asked appellant about the item, and appellant was non-responsive. The trooper testified that he then asked appe llant, “Would you mind showing what’s in your pockets?” Appellant reach ed into his pocket and pulled out a vial exactly like the one that Sprurgeon dropped. When Trooper Weidhaas aske d what was in the vial, appellant said “marijuana.” Appellant also admitted that he had smoked PCP that night, and the trooper then

arrested him.- 4 - At the suppression hearing, appellant argue d that Trooper Weidhaas did not have a reasonable belief that appellant was armed and dangerous, so the pat down was in violation of his Fourth Amendment rights, pursuant to Terry v. Ohio , 392 U.S. 1 (1968). Appellant also argued that the pat-down sear ch went beyond the scope of Terry because the trooper put the item between his fingers while doing the pat down. Appe llant argued that the “c onsent” he then gave (and pulling the item out of his pocket) was tain ted by these Fourth Amendment violations, and, therefore, the evidence was not admissible. The Commonwealth argued that the trooper had reasonable suspicion to believe a crime was committed and that appellant was armed and dangerous because the officer believed a ppellant was under the influence of PCP. The trial court found the frisk was permissi ble because drugs were involved. The court also noted that the frisk was “a very close case,” but denied appellant’s motion to suppress. A jury found appellant guilty of possession of PCP and fined him $2,500.

ANALYSIS

A. “Armed an d Dangerous” Appellant argues that the trial court had no evidence before it to support the conclusion that the trooper reasonably believed that he wa s armed and dangerous, as required under Terry , 392 U.S. 1. However, the Commonw ealth on appeal does not rely upon the trial court’s Fourth Amendment analysis under Terry and instead suggests that this Court can af firm the trial court’s decision to deny appellant’s motio n to suppress on an alternative Fourth Amendment theory – that Trooper Weidhaas had probable cause to arrest and to search appellant. We assume without deciding here that the trial court erred when it found that Trooper Weidhaas had reasonable suspic ion to believe appellant was armed and dangerous. Appellant argues that we should no t consider the Comm onwealth’s alternative justifi cation for the trial court’s denial of his motion, as th e prosecutor did not argue this alternat ive rationale to the trial court. We- 5 - must first address this argument be fore we can consider whether th e trooper had probable cause to support his actions. B. Right Result/Wrong Reason

The Commonwealth asks this Court to affirm appellant’ s conviction because Trooper Weidhaas had probable cause to arrest appellant, which would justify the se arch under the Fourth

Amendment as a search in cident to an arrest. See Chimel v. California , 395 U.S. 752, 755 (1969); Wright v. Commonwealth , 222 Va. 188, 193, 278 S.E.2d 849, 852-53 (1981 ). The Commonwealth acknowledges that the prosecutor did not specifically argue to the trial court that the trooper had probable cause to arrest, but argues that the right result was reached here, even if the court applied the wrong rationale. See Schultz v. Schultz , 51 Va. (10 Gratt.) 358, 384 (1853) (“[I]t is the settled rule that how erroneous soever may be the reas ons of the court for its judgment upon the face of the judgment itself, if the judgment be right, it wi ll not be disturbed on account of the reasons.”). Appellant counters that this case does not present an appropriate situation to apply the doctrine of “right result, wrong reason” under Whitehead v. Commonwealth , 278 Va. 105, 677 S.E.2d 265 (2009), modified , No. 080775 (Oct. 22, 2009). Based on the record in this case, however, we disagree with appellant. The Supreme Court in Whitehead considered whether the evidence was sufficient to convict Whitehead of receiving stolen property. For the first time on a ppeal, the Commonwealth argued that Whitehead had “received the stolen property itself under the doctrine of constructive possession,” id. , slip op. at 9 (emphasis added), and asked the Supreme Court to affirm the conviction because the right result was reache d, even though the trial court used the wrong reasoning. The Supreme Court refused to consid er this new theory of guilt offered by the Commonwealth, stating, “[C]ases in which the pa rty seeking affirmance failed to present the- 6 - argument in the trial court, such that the trial court did not have an opportunity to rule on the argument, are not ‘proper cases’ for the applicati on of the doctrine.” Id. , slip op. at 10. Nevertheless, the Supreme Court of Virginia then emphasized: The Court of Appeals has previously observed that: An appellate court may affirm the judgment of a trial court when it has reached the right result for the wrong reason. However, [t]he rule does not always apply. . . . [T]he proper application of this rule does not include those cases where, because the trial court has rejected the right reason or confined its decision to a specific ground, further factual resolution is needed before the right reason may be assigned to support the trial court’s decision.

Harris v. Commonwealth , 39 Va. App. 670, 675-676, 576 S.E.2d 228, 231 (2003), Blackman v. Commonwealth , 45 Va. App. 633, 642-643, 613 S.E.2d 460, 465 (2005) (“an appellee may argue for the first time on appeal any legal ground in support of a judgment so long as it does not require ne w factual determinations.”) We agree with these holdings by the Court of Appeals.

Id. , slip op. at 12-13.

The Court also cited Eason v. Eason , 204 Va. 347, 352, 131 S.E.2d 280, 283 (1963), in which the Supreme Court refused to consider the appellees’ estoppel argument because that defense was not mentioned during trial, and so the trial court never made the factual findings required for application of estoppel. Thus, Whitehead , contrary to appellant’s claim, applies only when the new argument made on appeal invol ves consideration of f actual findings that the trial court never reached, rather than applicati on of a different legal theory to facts already considered by the trial court. See Commonwealth v. Hill , 264 Va. 541, 548, 570 S.E.2d 805, 809 (2002) (overturning Hill v. Commonwealth , 37 Va. App. 1, 553 S.E.2d 529 (2001)) (finding a

trial court “reached the correct result in this case, although for the wrong reason” where the- 7 - Supreme Court did not indicate that the legal an alysis used to affirm Hill’s conviction was argued to the trial court and where the Comm onwealth, when arguing before the Court of Appeals, had conceded that a different legal theory for affirming the trial court should be applied). Cf. Schultz , 51 Va. (10 Gratt.) at 384 (“[I]t is the settled rule th at how erroneous soever may be the reasons of the court for its judgment upon the face of the judgment itself, if the judgment be right, it will not be disturbed on account of the reasons.”). In addition, in the case before this Court, the Co mmonwealth argues on appeal that Trooper Weidhaas had probable cause to arrest appellant pr ior to the pat-down search, and, thus, the search was permissible. This argumen t, like the argument based on reasonable suspicion that was presented to the trial cour t here, is also a Fourth Amendment ar gument. All the fa cts required to consider this legal argumen t were presented to the trial court and considered by it when it addressed

the Fourth Amendment reas onable suspicion argument of the trial prosecutor. Thus, we find the posture of this case is quite similar to the situation in the recent case of Moore v. Commonwealth , 276 Va. 747, 754, 668 S.E.2d 150, 154 (20 08), where the Supreme Court reversed this Court and found that “invok[ing] the ‘pro bable cause standard’ rather th an the applicable ‘reasonable suspicion standard’” leaves “no doubt” that the issu e in question involves th e Fourth Amendment. We find that this case presen ts an appropriate situation fo r the application of the right result/wrong reason doctrine. Whitehead does not preclude consider ation of the legal theory presented here – that probable cause existed fo r the arrest and search of appellant. As in Moore , the parties here were aware at all stages of this case that the co urts would look to the Fourth Amendment to determine if Troope r Weidhaas’s actions were appropriate – regardless of whether the question involved probable cause or reasonable articulable suspicion.- 8 - C. Probable Cause As noted, supra , the Commonwealth argues on appeal that Trooper Weidhaas had probable cause to arrest appellant, and, therefore, the se arch did not violate the dictates of the Fourth

Amendment even if th e search was not justified under the principles established in Terry . Appellant agrees that, if the trooper had probable cause to ar rest him, then the search was valid as a search

incident to arrest. See Wright , 222 Va. at 192-93, 278 S.E.2d at 852 -53 (finding that an officer with probable cause for an arrest can search the suspect fi rst and then arrest him); Carter v.

Commonwealth , 9 Va. App. 310, 31 2, 387 S.E.2d 505, 50 6-07 (1990) (noting that the search, if supported by independent probable cause, need not fo llow the arrest). Howe ver, appellant contends the trooper did not have probable cause to believe he was in possession of illegal drugs. We agree with the Commonwea lth that Trooper Weidhaas had probable cause to arrest appellant. Thus, we conclude that the trial court – even assuming without deci ding that some of its reasoning was not correct – reached the right co nclusion when it denied appellant’s motion to

suppress. The United States Supreme Court has e xplained probable cause numerous times. In Maryland v. Pringle , 540 U.S. 366 (2003), cited by both parties here, that Court noted: “[t]he substance of all the defi nitions of probable cause is a reasonable ground for belief of guilt,” [ Brinegar v. United States , 338 U.S. 160, 175 (1949)] (internal quotation marks and citations omitted), and that the belief of gu ilt must be particularized with respect to the person to be searched or seized, Ybarra v. Illinois , 444 U.S. 85, 91, 62 L. Ed. 2d 238, 100 S. Ct. 338 (1979).

* * * * * * *

To determine whether an officer had probable cause to arrest an individual, we examine the events leading up to the arrest, and then decide “whether these historical fa cts, viewed from the standpoint of an objectively reasonable police officer, amount to” probable- 9 - cause, Ornelas [v. United States , 517 U.S. 690,] 696, 134 L. Ed. 2d 911, 116 S. Ct. 1657 [(1996)].

Id. at 371 (some brackets in original). Here, as Trooper Weidhaas approached the silv er car, which was stopped on the shoulder of Interstate 66 at two o’clock in the morning, he smelled a strong odor of marijuana coming from the car. Trooper Weidhaas had additional information as well by the time he confronted appellant. Prior to his interaction with appellant, the troope r had arrested another passenger in the car – Sprurgeon. Trooper Weidhaas recovered PCP and marijuana that Sprurge on had dropped as he got out of the car. Sprurgeon behaved in a mann er consistent with someone under the influence of PCP, and Sprurgeon had admitted to the trooper that he had smoked PCP that evening. Appellant was behaving in the exact same manner as Sprurgeon, allowing the officer to reach the logical conclusion that appellant had also sm oked PCP that evening. Appellant’s counsel conceded at the suppression hearing that a ppellant was clearly “under the influence of something” when Trooper Weidhaas talked to him. Based on all these facts, which the trial court clearly considered in finding th e trooper had reasonable suspic ion for the pat-down search, the trooper certainly had probable cause to believe that appellant po ssessed illegal drugs – either by having joint or constructive posse ssion of the drugs or iginally in Sprurgeo n’s hand or by having actual possession of other drugs that the officer had not yet seen. See Ritter v. Commonwealth , 210 Va. 732, 741, 173 S.E.2d 799, 805-06 (1970) (noting that possession of an illegal drug can be actual, constructive, or joint). Appellant argues that probable cause “must be pa rticularized with respect to the person to

be searched” and contends that the facts here did not particularly indi cate that he actually possessed PCP or marijuana. We believe the fa cts here provided the trooper with sufficient information to particularize the probable cause to appellant.- 10 - First, appellant was one of only three people in the car, wh ich was parked on the shoulder of the interstate, from which the smell of marijuana was emanating. Second, appellant had clearly ingested some intoxicating agent, a nd the only agents at the scene were PCP and marijuana. Third, the trooper, based on his tr aining and experience, believed appellant’s

behavior indicated that he had ingested PCP and/or marijuana. In addition, Sprurgeon had admitted that he smoked PCP earlier that evening, and appellant was behaving in exactly the same manner as Sprurgeon. These facts did more than suggest that someone in the general area had marijuana or PCP in his possession – they ga ve the trooper probable cause to believe that appellant in particular possessed and had been using illegal narcotics. See Dodd v.

Commonwealth , 50 Va. App. 301, 310-11, 649 S.E.2d 222, 226-27 (2007) (discussing joint possession of drugs found in the center console of a car) (citing Pringle , 540 U.S. 366).

CONCLUSION We assume without deciding th at the trial court erred when it found Trooper Weidhass had

sufficient information to provide him with reasonable articulable suspicion that appellant was armed and dangerous. Neverthele ss, we find that the tria l court’s ruling that denied the motion to suppress was correct as the trooper had probable cause to ar rest appellant and, theref ore, did not violate the Fourth Amendment when searching him. Thus, we find the tria l court did not err in denying appellant’s motion to suppress, and we affirm appellant’s conviction.

Affirmed.