COURT OF APPEALS OF VIRGINIA 

Present: Judges Bray, Frank and Bumgardner 

Argued by teleconference 

COMMONWEALTH OF VIRGINIA 

 MEMORANDUM OPINION* BY 

v. Record No. 1779-01-1 JUDGE ROBERT P. FRANK 

 JANUARY 4, 2002 

KEBVIN SHAQUAN FOSTER 

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON 

Louis R. Lerner, Judge 

 Marla Graff Decker, Assistant Attorney 

General (Randolph A. Beales, Attorney 

General; Margaret W. Reed, Assistant Attorney 

General, on brief), for appellant. 

 Theophlise L. Twitty for appellee. 

 Indicted for possession of cocaine, pursuant to Code 

§ 18.2-248, Kebvin Shaquan Foster (appellee) moved the trial court 

to suppress the cocaine found on him, contending the officer did 

not have probable cause to arrest him for possession of cocaine. 

Following a hearing on that motion, the trial court granted the 

motion, finding that the police had no probable cause to arrest. 

The Commonwealth appeals pursuant to Code § 19.2-398, contending 

the police had probable cause to arrest. We agree with the 

Commonwealth and reverse the trial court. 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.
BACKGROUND

 On March 30, 2001, Hampton Police Officer Brian Snyder was 

driving toward 435 Dare Avenue, a known narcotics location. 

Snyder saw "several subjects" in that area of Dare Avenue, a 

location where the police "had received several complaints of drug 

activity taking place." 

 Snyder, who was still in his vehicle, "got within six feet of 

the group [where appellant was standing] . . . [and saw] the 

[appellee] at that time with his right hand behind his back." 

Appellee's back was towards the officer. 

 Snyder observed appellee reach behind his back with his hand 

closed, but "as he reached into his pants it opened up." "I could 

see at that time suspected cocaine in his hand in a plastic 

baggie." Snyder described the cocaine as a golf-ball-sized 

object. When appellee removed his hand from his pants, his hand 

was empty. 

 On cross-examination, defense counsel asked the officer, "You 

didn't know it to be cocaine, did you?" The officer replied, "I 

didn't have it tested at that time, no." Defense counsel then 

asked, "[Y]ou didn't know what it was?" The officer replied, 

"[N]o sir." 

 The following exchange took place between defense counsel and 

Snyder: 

Q. Did you have a reason to believe -- not 

just a suspicion -- that what he had was 

cocaine? Did you have reason to believe 

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that it was cocaine or you suspected it to 

be cocaine? It's two different questions. 

A. Excuse me? 

Q. Did you suspect it to be cocaine? 

A. No, sir. I saw an off-white substance 

that we retrieved before in the past which 

came back after being tested which could be 

at that point suspected cocaine reaching in 

the back of his pants. The reason I 

testified it was suspected cocaine is 

because -- 

Q. You suspected it to be cocaine? 

A. Exactly. It had not been tested to be 

proven to be -- 

 On re-direct, Snyder specifically stated the object "looked 

like cocaine." 

 Snyder testified that he had been with the special 

investigative unit of the Hampton police for four years. Snyder 

attended "basic undercover school, narcotics investigation 

school, advanced tactical school," and a class at the state 

forensic laboratory on the identification of narcotics. The 

officer had made between 60-100 arrests for possession of 

cocaine during his tenure with the investigative unit. 

 After observing the item in appellee's hand, Snyder exited 

his vehicle and asked appellee to put his hands on the car. The 

officer told appellee that he had seen him put suspected cocaine 

in the back of his pants. At first, appellee resisted the 

officer, but after the officer repeated the request, Foster put 

his hands on the car. Snyder pulled appellee's rear waistband 

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away from his body and saw the plastic baggie with the suspected 

cocaine. After retrieving the bag, the officer arrested 

appellee for possession of cocaine. The officer also found $503 

and a cell phone on the appellee. 

 At the suppression hearing, appellee argued the officer 

only "suspected" the object to be cocaine, that the officer only 

had "reasonable suspicion" and not probable cause to arrest. 

 The trial court described appellee's argument as follows: 

"If he doesn't articulate probable cause and he only articulates 

the word suspect, [defense counsel] argues that's reasonable 

suspicion. Therefore, he doesn't have anything more to do at 

that point than to pat him down and he can't search him." 

Defense counsel agreed with this explanation of the motion to 

suppress. 

 The trial court discussed the argument with the prosecutor: 

[THE COURT:] You're asking the Court to 

infer from the remainder of the testimony 

that he had the probable cause to do the 

search beyond the fact that he has 

articulated nothing but a suspicion. You're 

asking the Court to read into every other 

fact he testified about for the Court to 

make a determination that there was probable 

cause for him to search. Is that correct? 

THE COMMONWEALTH: Yes, Your Honor. 

THE COURT: Even though he hasn't 

articulated the words probable cause. He 

only articulated suspicion. You're saying I 

can go beyond his articulation and I can say 

he had the probable cause to do the search. 

He could do more than a pat-down at that 

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point even though he has not articulated 

that to me. 

THE COMMONWEALTH: Yes, Your Honor. 

 The trial court then granted appellee's motion to suppress 

the fruits of the search. The Commonwealth appealed this 

ruling. 

ANALYSIS

 "It is well established that on appeal the burden is on the 

appellant[, the Commonwealth in this instance,] to show, 

considering the evidence in a light most favorable to 

[appellee], that the [granting] of a motion to suppress 

constitutes reversible error." Commonwealth v. Tart, 17 Va. 

App. 384, 390-91, 437 S.E.2d 219, 223 (1993). 

Questions of reasonable suspicion and 

probable cause . . . are subject to de novo

review on appeal. See McGee v. 

Commonwealth, 25 Va. App. 193, 197, 487 

S.E.2d 259, 261 (1997) (en banc). "In 

performing such analysis, we are bound by 

the trial court's findings of historical 

fact unless 'plainly wrong' or without 

evidence to support them . . . ." Id. at 

198, 487 S.E.2d at 261. 

Archer v. Commonwealth, 26 Va. App. 1, 8, 492 S.E.2d 826, 830 

(1997). 

"[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 

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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, 223 

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 McGee v. 

Commonwealth, 25 Va. App. 193, 197-98, 487 

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

Ornelas v. United States, 517 U.S. 690, 691 

(1996)). 

Powell v. Commonwealth, 27 Va. App. 173, 176-77, 497 S.E.2d 899, 

900-01 (1998). 

 Appellee relies on DePriest v. Commonwealth, 4 Va. App. 

577, 359 S.E.2d 540 (1987), to support his contention. In 

DePriest, we held an officer's observation of several "hand to 

hand" transactions was not sufficient for probable cause to 

arrest because the officer "did not observe suspected narcotics 

change hands nor did he observe the exchange of any object which 

in his experience suggested narcotics." Id. at 585, 359 S.E.2d 

at 544 (emphasis added). 

 Here, the officer, trained and experienced in drug 

interdiction and having made between 60-100 drug arrests, saw in 

appellee's hand a substance he "suspected" was a baggie 

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containing cocaine. He also testified the object "looked like 

cocaine." This event occurred in a location known for 

narcotics. In addition, appellee clearly attempted to hide the 

item from the police. 

Powell is more applicable to these facts than DePriest. 

Officers arrested Powell after observing him in a high crime 

area, making furtive gestures as if to discard something that 

appeared to be cocaine. Powell, 27 Va. App. at 177, 497 S.E.2d 

at 901. We held, "[I]t was reasonable for [Officer] Stokes, 

drawing upon his training and experience, to conclude that the 

substance was probably cocaine." Id. This presumption, 

together with Powell's behavior, gave the officers probable 

cause for the arrest. 

 Here, the police had received several complaints about drug 

activity on this particular street. Appellee was standing in 

this area with several other people. The officer observed him 

hiding something that "looked like cocaine" in the back of his 

pants. Under these circumstances, it was reasonable for Snyder, 

drawing upon his training and experience, to conclude that the 

substance probably was cocaine. He then had probable cause for 

the arrest. 

 The fact that the officer did not intone the words 

"probable cause" is of no moment. An officer is not required to 

use these particular words in order for a trial court to find 

probable cause existed. "'[P]robable cause is measured against 

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an objective standard.'" Taylor v. Commonwealth, 10 Va. App. 

260, 266, 391 S.E.2d 592, 595-96 (1990) (quoting United States 

v. Salinas-Calderon, 728 F.2d 1298, 1300 (10th Cir. 1984) 

(citing Beck v. Ohio, 379 U.S. 89, 96, (1964))). Probable cause 

exists when, after examining the totality of the circumstances, 

"'"the facts and circumstances within the arresting officers' 

knowledge and of which they had reasonably trustworthy 

information are sufficient in themselves to warrant a man of 

reasonable caution in the belief that" an offense has been or is 

being committed.'" Jefferson v. Commonwealth, 27 Va. App. 1, 

12-13, 497 S.E.2d 474, 479-80 (1998) (quoting Brinegar, 338 U.S. 

at 175-76 (quoting Carroll v. United States, 267 U.S. 132, 162 

(1925))). 

 The use of legal terms such as "probable cause" and 

"reasonable suspicion" by the witnesses clearly does not enter 

into this determination. If Snyder had stated that he had 

probable cause, but in fact he did not, the trial court would 

not be bound by that subjective belief or his legal conclusion. 

An officer's subjective belief or statement that he had probable 

cause does not bind a court to agree with that determination. 

See Dickerson v. Commonwealth, 35 Va. App. 172, 183, 543 S.E.2d 

623, 628-29 (2001) ("[T]he officer's subjective beliefs are 

irrelevant for purposes of determining whether the officer 

actually had probable cause to arrest."). Conversely, the 

failure of an officer to testify using the "magic words," i.e., 

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probable cause, does not require a court to find an arrest was 

illegal. 

 Here, we are not reviewing the trial court's findings of 

historical fact. Credibility is not an issue in this argument. 

The parties agree on the facts. We need determine only whether, 

based on the facts known to Snyder, would a man of reasonable 

caution believe an offense had been or was being committed, thus 

giving him probable cause to arrest appellee. See Jefferson, 27 

Va. App. at 12-13, 497 S.E.2d at 479-80. 

 While the officer spoke in terms of "suspected cocaine," 

his testimony clearly explained he used the term because he 

could not be absolutely certain the item in the baggie was 

cocaine until the laboratory analysis was completed. See

Armstrong v. Commonwealth, 29 Va. App. 102, 110-11, 510 S.E.2d 

247, 250-51 (1999) (explaining that officers have probable cause 

to arrest a suspect observed holding something that, based on 

the officers' experience, training, and the surrounding 

circumstances, they believe or suspect is illegal narcotics). 

See also Purdie v. Commonwealth, 36 Va. App. 178, 188-89, 549 

S.E.2d 33, 38 (2001) (finding probable cause to arrest where the 

officer's training, experience, and the surrounding 

circumstances led him to believe the defendant was attempting to 

conceal drugs, although the officer did not see the item the 

defendant attempted to hide); Carson v. Commonwealth, 12 Va. 

App. 497, 502, 404 S.E.2d 919, 922 ("[A]n investigating officer 

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does not have to 'deal with hard certainties, but with 

probabilities,' and is permitted to make 'common-sense 

conclusions about human behavior' in assessing a situation" for 

probable cause. (quoting Texas v. Brown, 460 U.S. 730, 742 

(1983))), aff'd en banc, 13 Va. App. 280, 410 S.E.2d 412 (1991), 

aff'd, 244 Va. 293, 421 S.E.2d 415 (1992). 

 We conclude, therefore, that Officer Snyder had probable 

cause to arrest appellant for possession of cocaine; therefore, 

the search of his person incident to the arrest was lawful. 

"'When an officer has probable cause to arrest a person, the 

officer may search the person . . . .'" Williams v. 

Commonwealth, 21 Va. App. 263, 267, 463 S.E.2d 679, 681 (1995) 

(quoting Buck v. Commonwealth, 20 Va. App. 298, 304, 456 S.E.2d 

534, 537 (1995)). We reverse the decision of the trial court 

and remand for trial on the indictment. 

Reversed and remanded.

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