COURT OF APPEALS OF VIRGINIA 

Present: Judges Fitzpatrick, Overton and Senior Judge Hodges 

Argued at Salem, Virginia 

COMMONWEALTH OF VIRGINIA 

v. Record No. 2791-95-3 MEMORANDUM OPINION* BY 

 JUDGE JOHANNA L. FITZPATRICK 

RICHARD EMMANUEL BROGGIN, JR. MAY 7, 1996 

 FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG 

Richard S. Miller, Judge 

 Kathleen B. Martin, Assistant Attorney 

General (James S. Gilmore, III, Attorney 

General, on brief), for appellant. 

 Joseph A. Sanzone (Joseph A. Sanzone 

Associates, on brief), for appellee. 

 Richard Emmanuel Broggin, Jr. (appellee) was indicted for 

possession of cocaine with intent to distribute in violation of 

Code § 18.2-248. Appellee filed a motion to suppress the 

cocaine, arguing that the police officer had no probable cause to 

arrest him, searched him without a search warrant, and did not 

act under exigent circumstances. The trial court granted the 

suppression motion, and the Commonwealth appeals that ruling 

pursuant to Code § 19.2-398(2).1

 On appeal, the Commonwealth 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 

 1Code § 19.2-398 provides, in pertinent part, that: 

 A petition for appeal from a circuit court 

may be taken by the Commonwealth only in 

felony cases . . . from . . . (2) [a]n order 

of a circuit court prohibiting the use of 

certain evidence at trial on the grounds such 

evidence was obtained in violation of the 

provisions of the Fourth, Fifth or Sixth 
 2 

 

argues that: (1) the officer had probable cause to arrest 

appellee and search him incident to the arrest; and (2) even if 

the officer lacked probable cause, exigent circumstances 

justified the warrantless search. For the reasons that follow, 

we affirm the trial court. 

 In June 1995, Investigator W. K. Dance (Dance) of the 

Lynchburg Police Department received information from a reliable 

confidential informant who, in the past, had provided Dance with 

information that led to fifteen to twenty arrests and 

convictions. The informant told Dance that appellee had been 

selling cocaine at the Aerofin Corporation plant in Lynchburg 

every Thursday since November 1994 and that the informant had 

seen appellee sell cocaine. On the morning of Thursday, June 8, 

1995, the informant called Dance and told him that: (1) 

appellee, an employee at the Aerofin plant, would arrive at the 

plant that day just before 3:30 p.m.; (2) he would be driving a 

dark-colored Suzuki motorcycle; (3) he would have cocaine to sell 

inside the plant; and (4) he would sell cocaine to his co-workers 

after they cashed their paychecks during their dinner break at 

8:00 p.m. The informant had also called Dance with this 

information four to five days before June 8. 

 Dance did not obtain an arrest or search warrant prior to 

going to the plant. On June 8, Dance and two police officers saw 

Amendments to the Constitution of the United 

States or Article I, Sections 8, 10 or 11 of 

the Constitution of Virginia. 
 3 

appellee arrive at work at 3:25 p.m. on a black Suzuki 

motorcycle. Dance approached appellee as he entered the plant 

and asked "if he had anything." Appellee said no. Dance then 

searched appellee's coat and found three plastic bags containing 

crack cocaine. After finding the cocaine, Dance arrested 

appellee. 

 Appellee filed a pretrial motion to suppress the cocaine 

seized from his coat. On November 21, 1995, the trial court 

granted the suppression motion and stated as follows: 

 [T]he Court is going to sustain and grant the 

motion to suppress because I think . . . in 

this case that even though the Commonwealth 

established the reliability of the informant, 

. . . there was an opportunity to go and get 

the search warrant . . . . 

 The case law authorizes a temporary, 

reasonable detention of a defendant under 

these circumstances. There is nothing in the 

record to indicate why the officer did not do 

that. He had the information from the 

informant at least prior to the search in 

this case. And I think that there were no 

ex[i]gent circumstances shown in the record 

to justify the search. 

 In reviewing a trial court's ruling on a suppression motion, 

this Court considers the evidence in the "light most favorable to 

. . . the prevailing party below," the appellee in this instance, 

and the decision will only be disturbed if plainly wrong. 

Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 

48 (1991). 

 "'[T]he test of constitutional validity [of a warrantless 

search] is whether at the moment of arrest the arresting officer 
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had knowledge of sufficient facts and circumstances to warrant a 

reasonable man in believing that an offense has been committed.'" 

Hardy v. Commonwealth, 11 Va. App. 433, 434-35, 399 S.E.2d 27, 

28 (1990) (quoting DePriest v. Commonwealth, 4 Va. App. 577, 583-

84, 359 S.E.2d 540, 543 (1987), cert. denied, 488 U.S. 985 

(1988)). 

"Probable cause to arrest must exist exclusive of the incident 

search." Carter v. Commonwealth, 9 Va. App. 310, 312, 387 S.E.2d 

505, 506 (1990). "The information provided by [an] informant 

must describe not just easily obtained facts, but future third 

party actions not easily predicted." Hardy, 11 Va. App. at 435, 

399 S.E.2d at 28 (citing Illinois v. Gates, 462 U.S. 213 (1983)). 

 Viewing the evidence in the light most favorable to 

appellee, we hold that the totality of circumstances did not 

support Dance's search of appellee. When Dance went to the 

plant, he verified only that appellee arrived at the plant where 

he worked at a certain time. Nothing about appellee's behavior 

indicated that he had drugs on his person, and Dance did not 

pause to observe appellee's actions before stopping him. Thus, 

Dance did not have probable cause to arrest appellee or to search 

him for drugs. 

 Additionally, no exigent circumstances supported Dance's 

search of appellee. "'Where there are exigent circumstances in 

which police action literally must be "now or never" to preserve 

the evidence of the crime, it is reasonable to permit action 
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without prior judicial evaluation.'" Wright v. Commonwealth, 222 

Va. 188, 193, 278 S.E.2d 849, 853 (1981). In Wright, the police 

officer received the tip at 6:00 p.m., telling him that a drug 

delivery would be made at 6:30 p.m. Id. The Supreme Court of 

Virginia held that "[i]f he was to make the necessary 

investigation, intercept the suspects while the reported crime 

was in progress, and preserve the evidence of that crime, he had 

to act 'now or never.'" Id. The instant case is distinguishable 

from Wright in that Dance received the informant's tip several 

hours before the crime was to occur and had sufficient time to 

seek a search warrant. 

 Accordingly, the decision of the trial court is affirmed. 

 Affirmed.