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. Ringer, Senior Assistant Public 

Defender, for appellant. 

John H. McLees, Jr., Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Brandon Levar Wiggins (“appellant”) appeals his conviction 

for possession of cocaine with the intent to distribute, 

contending the trial court erred on Fourth Amendment grounds by 

denying his motion to suppress cocaine discovered pursuant to his 

stop and arrest by officers of the Portsmouth Police Department. 

Appellant contends the police arrested him without probable cause 

and, therefore, the court should have suppressed cocaine 

discovered on his person during a search incident to his arrest. 

We find no error and affirm the decision of the trial court. 

 

 *Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 
I. 

FACTUAL BACKGROUND 

 On the afternoon of August 30, 1997, Officer R.K. Butler and 

Officer White were sitting in a marked police vehicle on the 700 

block of Peninsula Avenue in the City of Portsmouth. The officers 

were in full uniform with badge displayed. As White filled out 

paperwork, Butler observed appellant and another man appear on 

bicycles. Although the two individuals were riding towards 

Butler, appellant “wasn’t looking in [Butler’s] direction” as he 

was “turned around” talking to his companion. 

 Butler noticed what appeared to be a brown, hand-rolled, bent 

and wrinkled cigar hanging from appellant’s mouth. From these 

characteristics, Butler believed the cigar was a marijuana cigar. 

Butler had seen marijuana cigars before and had made “well over 

twenty” arrests for possession of such cigars. 

 When appellant was about fifteen feet from the front of 

White’s vehicle, he turned his head in Butler’s direction, quickly 

raised his hand to his mouth and removed the cigar, reaching down 

with it along the right side of his body. Butler could not tell 

what appellant did with the cigar thereafter. Butler had observed 

the cigar in appellant’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. Appellant denied having had anything in his mouth. 

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When Butler asked if he could search appellant’s person, appellant 

withheld consent. However, since Butler believed that he had 

probable cause to arrest appellant for possession of marijuana, he 

ordered appellant to turn around so that he could conduct a 

pat-down search for weapons. Appellant turned around and 

immediately said, “I’ve got a blunt.”1 Butler looked down and 

noticed a marijuana cigar sticking out of the top of the back 

right pocket of appellant’s shorts. During a search of 

appellant’s person subsequent to arrest, Butler also found a 

quantity of cocaine in another pocket. 

 At trial, appellant moved to suppress the cocaine found on 

his person on the ground that Butler did not have probable cause 

to arrest him for possession of marijuana at the time he initiated 

the pat-down search. The trial court denied the motion and found 

appellant guilty of possession with the intent to distribute under 

Code § 18.2-248. On July 6, 1998, the court sentenced appellant 

to serve five years in prison, with all but two years and nine 

months suspended. 

II. 

ANALYSIS 

 The Fourth Amendment ensures the right of people to be free 

from unreasonable searches and seizures. See Terry v. Ohio, 392 

U.S. 1, 9 (1968). Generally, evidence obtained by searches or 

 

 1A blunt is a street term for a regular cigar that has been 

emptied of tobacco and replaced with marijuana. 

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seizures that violate the Fourth Amendment is inadmissible at a 

criminal trial. See Mapp v. Ohio, 367 U.S. 643, 655 (1961). 

“‘Whether a search . . . is unreasonable is determined by 

balancing the individual’s right to be free from arbitrary 

government intrusions against society’s countervailing interest in 

preventing or detecting crime and in protecting its law 

enforcement officers.’” Sattler v. Commonwealth, 20 Va. App. 366, 

368, 457 S.E.2d 398, 399-400 (1995) (quoting Stanley v. 

Commonwealth, 16 Va. App. 873, 875, 433 S.E.2d 512, 513 (1993)). 

It is well established that “[a] custodial arrest of a suspect 

based on probable cause is a reasonable intrusion under the Fourth 

Amendment” and that “a [warrantless] search incident to [such] 

arrest requires no additional justification.” United States v. 

Robinson, 414 U.S. 218, 235 (1973). Authority to search under 

such circumstances, however, 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 (1964) (“Whether [a 

warrantless] arrest was constitutionally valid depends . . . upon 

whether, at the moment the arrest was made, the officers had 

probable cause to make it . . . .”). 

 The burden is on appellant to show that the trial court’s 

ruling constituted reversible 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 favorable to the Commonwealth, 

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the party prevailing below. See Greene v. Commonwealth, 17 Va. 

App. 606, 608, 440 S.E.2d 138, 139 (1994). 

 Ultimate questions of reasonable suspicion and probable cause 

involve questions of both law and fact and are reviewed de novo on 

appeal. See McGee, 25 Va. App. at 197, 487 S.E.2d at 261. We 

recognize, however, “‘that a police officer may draw inferences 

based on his own experience in deciding whether probable cause 

exists’” and that we “‘should give due weight to a trial court’s 

finding that [an] officer was credible and [his or her] inference 

was reasonable.’” James v. Commonwealth, 22 Va. App. 740, 743-44, 

473 S.E.2d 90, 91 (1996) (quoting Ornelas v. United States, 517 

U.S. 690, 700 (1996)). 

 “‘[P]robable cause exists when the facts and circumstances 

within the officer’s knowledge, and of which he has reasonably 

trustworthy information, alone are sufficient to warrant a person 

of reasonable caution to believe that an offense has been or is 

being committed.’” 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 (1981)). “‘[I]n assessing an 

officer’s probable cause for making a warrantless arrest, no less 

strict standards may be applied than are applicable to a 

magistrate’s determination that an arrest warrant 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 

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determining probable cause, we test the totality of circumstances 

as they would be viewed by “‘police officers trained in analyzing 

the observed conduct for purposes of crime control.’” Id. The 

Supreme Court of Virginia has recognized that, when viewed within 

the totality of circumstances, a suspect’s attempt to avoid police 

officers and to conceal an item in his or her possession are 

relevant considerations which may give an officer probable cause 

to believe the suspect possessed illegal drugs. See Parker, 255 

Va. at 106-07, 496 S.E.2d at 53. 

 Here, Officer Butler saw appellant holding a brown cigar in 

his mouth for five to ten seconds as appellant biked to within 

fifteen feet of his position. Butler, an officer experienced in 

identifying marijuana cigars, having effectuated well over twenty 

arrests for possession of such cigars, described the item in 

appellant’s mouth as wrinkled, hand-rolled, and bent. Based on 

his observations and experience, Butler stated the cigar appeared 

to be a marijuana cigar. 

 Furthermore, when appellant noticed the presence of police, 

he quickly removed the cigar from his mouth and brought it down to 

his side. Notwithstanding the fact that Butler stopped appellant 

on the street immediately after he removed the cigar from his 

mouth, appellant denied having held anything in his mouth upon 

Butler’s inquiry. 

 In light of the inferences Butler drew from his experience 

and the credibility the trial court afforded his testimony, we 

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find that these facts are sufficient to conclude that Butler had 

probable cause to arrest appellant for possession of marijuana and 

that the discovery of cocaine on appellant’s person incident to 

his arrest did not violate the Fourth Amendment. 

 Finding no error, we affirm the conviction. 

 Affirmed.

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