COURT OF APPEALS OF VIRGINIA

Present: Judges Willis, Bray and Annunziata Argued at Norfolk, Virginia

BRANDON LEVAR WIGGINS MEMORANDUM OPINION * BY v. Record No. 1532-98-1 JUDGE ROSEMARIE ANNUNZIATA JUNE 22, 1999 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH Johnny E. Morrison, Judge Dianne G. Ring er, Senior Assi stant Public Defender, for appellant. John H. McLees , Jr., Assist ant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Brandon Levar Wiggins (“appell ant”) appeals hi s conviction for possession of cocaine with the in tent to di stribute, contending the trial co urt erred on Fourth Amendment gr ounds by denying his motion to suppress cocaine disc overed pursuant to his stop and arrest by offi cers of the Po rtsmouth Police Department. Appellant cont ends the police arrested him without pr obable cause and, therefore, the court should have suppressed cocaine discovered on his person during a search incident to his arrest. We find no error an d affirm the decision of the tr ial court.

*Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, this opinion is not designated for publication.I. FACTUAL BA CKGROUND On the afternoon of August 30, 1997, Offi cer R.K. Butler and Officer White were sitting in a marked po lice vehicle on the 700 block of Peninsula Avenue in the City of Port smouth. The officers were in full uniform with badge displayed. As White filled out paperwork, Butler obse rved appellant and an other man ap pear on bicycles. Although the two indivi duals were ri ding towards Butler, appell ant “wasn’t lo oking in [Butler’s] direction” as he was “turned arou nd” talking to his companion. Butler noticed what appeared to be a brown, ha nd-rolled, bent and wrinkled cigar hang ing from appellant’s mouth. From these characteristics, Butler believed the cigar wa s a marijuan a cigar. Butler had seen mariju ana cigars before and had made “well over twenty” arrests fo r possession of such cigars. When appellant was about fifteen feet from th e front of White’s vehicle, he turned his head in Bu tler’s direction, quickly raised his hand to hi s mouth and remo ved the cigar, reaching down with it along the right side of his body. Butler could not tell what appellant did with the cigar ther eafter. Butler had observed the cigar in appellan t’s mouth for a period of five to ten seconds. As appellant rode by the police vehicle, Butler told him to stop. After appellant complied, Butler asked what he had had in his mouth. Appe llant denied havi ng had anything in his mouth.

- 2 -When Butler asked if he could search appell ant’s person, appellant withheld consent. Ho wever, since Butler be lieved that he had probable cause to arrest appellant for possession of marijuana, he ordered appell ant to turn around so that he coul d conduct a pat-down search for weapons. Ap pellant turned around and immediately sa id, “I’ve go t a blunt.” 1 Butler looked down and noticed a marijuan a cigar sticking out of the to p of the back right pocket of appellant’s sh orts. During a search of appellant’s pe rson subsequent to arre st, Butler al so found a quantity of cocaine in another pocket. At trial, appellan t moved to suppress the cocaine found on his person on the ground that Bu tler did not have probable cause to arrest him for posses sion of mariju ana at the time he initiated the pat-down search. The trial court denied the moti on and found appellant guilty of possession wi th the intent to distribute under Code § 18.2-248. On July 6, 1998, the court senten ced appellant to serve five years in prison, with all bu t two years and nine months suspended.

II. ANALYSIS The Fourth Amendment ensures the righ t of people to be free from unreasonable sear ches and seizures. See Terry v. Ohio , 392 U.S. 1, 9 (1968) . Generally, evidence ob tained by se arches or

1 A blunt is a street term for a regular cigar that has been emptied of tobacco and replaced with marijuana. - 3 -seizures that vi olate the Fourth Amendmen t is inadmissible at a criminal trial. See Mapp v. Ohio , 367 U.S. 643, 655 (1961). “‘Whether a sear ch . . . is unreasonab le is determined by balancing the in dividual’s right to be free from arbitrary government intrusions against society’s countervailing interest in preventing or dete cting crime an d in protecting its law enforcement of ficers.’” Sattler v. Commonwealth , 20 Va. App. 366, 368, 457 S.E.2d 398, 39 9-400 (1995) (quoting Stanley v. Commonwealth , 16 Va. App. 873, 875, 433 S.E.2d 512, 51 3 (1993)). It is well establishe d that “[a] cu stodial arrest of a suspect based on probable caus e is a reasonable intr usion under the Fourth Amendment” and that “a [warrantless] search incident to [such] arrest requires no addi tional justification.” United States v. Robinson , 414 U.S. 218, 23 5 (1973). Authorit y to search under such circumstances, ho wever, is contingent upon a lawful arrest and, therefore, upon the existence of probable cause. See id. See also Beck v. Ohio , 379 U.S. 89, 91 (1 964) (“Whether [a warrantless] arrest wa s constitutional ly valid depend s . . . upon whether, at the moment the arrest was made, the of ficers had probable cause to make it . . . .”). The burden is on appellant to show that th e trial court’s ruling constituted re versible error. See McGee v. Commonwealth , 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) ( en banc ). In considering the trial court’s denial of a motion to suppress, we view the evidence in the light most favorabl e to the Co mmonwealth,

- 4 -the party prevai ling below. See Greene v. Commonwealth , 17 Va. App. 606, 608, 440 S. E.2d 138, 139 (1994). Ultimate questions of reasonable suspicio n and probable cause involve question s of both law and fa ct and are reviewed de novo on appeal. See McGee , 25 Va. App. at 197, 48 7 S.E.2d at 261. We recognize, however, “‘ that a police officer may draw inferences based on his own experi ence in deciding wh ether probable cause exists’” and that we “‘should give due weight to a trial court’s finding that [an] officer was cred ible and [his or her] inference

was reason able.’” James v. Commonwealth , 22 Va. App. 740, 743-44, 473 S.E.2d 90, 91 (1996) (quoting Ornelas v. Un ited States , 517 U.S. 690, 700 (1996)). “‘[P]robable cause exists wh en the facts an d circumstances within the officer’s kn owledge, and of whic h he has reasonably trustworthy in formation, alone are suffic ient to warr ant a person of reasonable caution to believe that an of fense has be en or is being commit ted.’” Parker v. Commonwealth , 255 Va. 96 , 106, 496 S.E.2d 47, 53 (1998) (quoting Taylor v. Commonwealth , 222 Va. 816, 820-21, 284 S.E. 2d 833, 836 (1 981)). “‘[I]n assessing an officer’s prob able cause for maki ng a warrantless arrest, no less strict standards may be applied than ar e applicable to a magistrate’s determinatio n that an arrest warr ant should issue.’” DePriest v. Commonwealth , 4 Va. App. 577, 584, 359 S.E.2d 540, 543 (1987) (quoting Washington v. Commonwealth , 219 Va. 857, 862, 252 S.E.2d 326, 329 (1979))‚ cert. denied , 488 U.S. 985 (1988). In

- 5 -determining prob able cause, we test the totality of circumstances as they would be viewed by “‘police officers trained in analyzing the observed conduct for purp oses of crime control.’” Id. The Supreme Court of Virgin ia has recognized that , when viewed within the totality of circumstances, a suspect’s attempt to avoid police officers and to concea l an item in his or her possession are relevant considerations which may give an of ficer probable cause to believe the su spect possessed il legal drugs. See Parker , 255 Va. at 106-07, 49 6 S.E.2d at 53. Here, Officer Butler saw appellant ho lding a brow n cigar in his mouth for five to ten seconds as appe llant biked to within fifteen feet of his position. Butler, an officer expe rienced in identifying marijuana cigars , having effectuated well over twenty arrests for posses sion of such cigars, described th e item in appellant’s mo uth as wrinkled, hand-rolled, and bent. Based on his observatio ns and experience, Butler stated th e cigar appeared to be a mari juana cigar. Furthermore, when appellant notice d the presence of police, he quickly remove d the cigar from his mouth and brought it down to his side. Notwithstand ing the fact that Butl er stopped appellant on the street immedi ately after he remove d the cigar from his mouth, appellant denied having held anything in his mouth upon Butler’s inquiry. In light of the infe rences Butler drew from his experience and the credibilit y the trial cour t afforded his testimony, we

- 6 -find that these facts are sufficie nt to conclude that Butler had probable cause to arre st appellant fo r possession of marijuana and that the discovery of cocaine on appellant’s person incident to his arrest did not violat e the Fourth Amendment. Finding no error, we affirm the conviction. Affirmed.

- 7 -