COURT OF APPEALS OF VIRGINIA 

Present: Judges Willis, Annunziata and Overton 

Argued at Richmond, Virginia 

MARCUS ANTRONIEL LANGSTON 

 OPINION BY 

v. Record No. 1008-97-2 JUDGE NELSON T. OVERTON 

 SEPTEMBER 8, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Walter W. Stout, III, Judge 

 Patricia P. Nagel, Assistant Public Defender 

(David J. Johnson, Public Defender, on 

brief), for appellant. 

 Marla Graff Decker, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Marcus Antroniel Langston (defendant) appeals his 

convictions of possession of cocaine with intent to distribute, 

in violation of Code § 18.2-248, and simultaneous possession of 

cocaine and a firearm, in violation of Code § 18.2-308.4. He 

contends: (1) the stop and search of his person by police were 

not supported by reasonable suspicion and, therefore, any 

evidence obtained as a result thereof was inadmissible, (2) the 

evidence was insufficient to support the conviction of cocaine 

possession with intent to distribute or simultaneous possession 

of cocaine and a firearm because the evidence was insufficient to 

prove he possessed the cocaine or he intended to distribute it 

and (3) the Commonwealth failed to prove the handgun he carried 

was functional. Because we hold defendant's stop and search were 

supported by reasonable suspicion and the evidence is sufficient 
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to support both charges, we affirm. 

I. Facts 

 Police Officers Hererra, Albright and Peace were on 

uniformed bicycle patrol in the 700 block of West Clay Street in 

Richmond on November 1, 1996. This area was known to the police 

as a drug "hot spot." The officers saw defendant standing with a 

group of men in the yard of an abandoned house that was posted 

with a "no trespassing" sign. The officers followed defendant 

down an alley where they peppered him with questions regarding 

his identity and destination. Finally, defendant stopped and 

turned to speak with the police officers. When he did they 

surrounded defendant; two officers stood in front of him and one 

behind, using their bicycles to block his path. 

 Defendant told the officers he was going to a store to buy 

food and then he was going to see his "girl." While they 

questioned him, the officers noticed that defendant "touched" or 

"patted" his right side. He wore a long coat which extended to 

his knee so the officers could not see what he was touching. 

When asked whether he was carrying drugs or firearms, defendant 

responded in the negative. Fearing for their safety, Officer 

Albright conducted a pat-down frisk of defendant's clothing and 

found a handgun in the right side of his pants. They arrested 

defendant, searched him incident to the arrest and handcuffed 

him. They found one hundred and twenty-eight dollars in cash on 

defendant but nothing else. A police van then arrived to 
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transport defendant to a police station. 

 Prisoners are transported in the van's side compartment. 

The compartment is a small space with metal walls and floor, 

having only a hard wooden bench to sit upon. The police officer 

who drove the van searched "every little nook and cranny" of the 

compartment before defendant was placed within it. Officer 

Herrera also searched the compartment. Defendant was the only 

occupant of the compartment. He was transported to a police 

station and removed from the van. Immediately after he was 

removed, the driver saw a bag sitting on the floor of the 

compartment. The bag contained .758 grams of cocaine wrapped in 

six separate containers. 

 At trial, defendant's motion to suppress the evidence was 

denied. The trial court first ruled that the encounter between 

police and defendant was consensual, but then ruled the officers 

conducted a Terry stop supported by reasonable suspicion because 

defendant was on abandoned property and his conduct gave rise to 

fear he possessed a gun. The trial court also ruled defendant 

constructively possessed the cocaine because, even if not found 

on his person, the circumstances proved he discarded the cocaine 

while he was in the police van. 

II. Police-Citizen Encounter 

 Defendant claims he did not consent to being stopped and 

searched by police. He argues the investigative behavior of the 

police amounted to a Terry stop. See Terry v. Ohio, 392 U.S. 1 
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(1968). Analysis of this confrontation "is necessarily 

imprecise, because it is designed to assess the coercive effect 

of police conduct, taken as a whole, rather than to focus on 

particular details of that conduct in isolation." Michigan v. 

Chesternut, 486 U.S. 567, 573 (1988). However, in Wechsler v. 

Commonwealth, 20 Va. App. 162, 169, 455 S.E.2d 744, 747 (1955), 

this Court summarized the three types of police-citizen 

encounters: 

 Fourth Amendment jurisprudence recognizes 

three categories of police-citizen 

confrontations: (1) consensual encounters, 

(2) brief, minimally intrusive investigatory 

detentions, based upon specific, articulable 

facts, commonly referred to as Terry stops, 

and (3) highly intrusive arrests and searches 

founded on probable cause. 

(Internal quotes and citations omitted). We must determine what 

kind of encounter took place and look to the legal foundation 

which may have supported it. 

 The trial court's first ruling, that the encounter was 

consensual, was erroneous. Police need not physically drag a 

suspect to a halt before an encounter will be characterized as a 

stop. See Brown v. Texas, 443 U.S. 47, 50 (1979) (holding 

seizure occurred when police stopped car in front of suspect and 

asked him to identify himself). The circumstances of the 

encounter may indicate, even without physical restraint, a 

suspect is not free to leave. In United States v. Mendenhall, 

446 U.S. 544, 554 (1980) (citing Terry, 392 U.S. at 19 n.16), the 

Supreme Court held as follows: 
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 Examples of circumstances that might indicate 

a seizure, even where the person did not 

attempt to leave, would be the threatening 

presence of several officers, the display of 

a weapon by an officer, some physical 

touching of the person of the citizen, or the 

use of language or tone of voice indicating 

that compliance with the officer's request 

might be compelled. 

 Our own Supreme Court of Virginia recently held in Parker v. 

Commonwealth, 255 Va. 96, 103, 496 S.E.2d 47, 51 (1998), that a 

suspect was seized for purposes of the Fourth Amendment in 

circumstances even less intimidating than those at bar. In that 

case, Mr. Parker was followed by an officer in a police cruiser. 

 When Mr. Parker entered private property, the officer followed 

him. Finally, the officer stopped, exited his cruiser and began 

to question Mr. Parker. These "acts constituted a show of 

authority which restrained the defendant's liberty." Id.

 In the instant matter, defendant was pursued by not one but 

three police officers. They were close enough to him to carry on 

a conversation. They harassed him with repetitive and redundant 

questions. When defendant stopped to confront them, he was 

surrounded. Because no reasonable person would have felt free to 

leave in these circumstances, we hold defendant was seized. 

III. Reasonable Suspicion 

 "In order to justify such a seizure, an officer must have a 

`reasonable and articulable suspicion of criminal activity on the 

part of the defendant.' . . . A general suspicion of some 

criminal activity is enough, as long as the officer can, based on 
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the circumstances before him . . . articulate a reasonable basis 

for his suspicion." Hatcher v. Commonwealth, 14 Va. App. 487, 

490, 419 S.E.2d 256, 258 (1992) (citations omitted). The 

function of the appellate court is to reweigh de novo

determinations of reasonable suspicion and probable cause. See

Ornelas v. United States, 517 U.S. 690, 699 (1996). "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 and we give due weight to the inferences 

drawn from those facts by resident judges and local law 

enforcement officers." McGee v. Commonwealth, 25 Va. App. 193, 

198, 487 S.E.2d 259, 261 (1997) (en banc) (citing Ornelas, 517 

U.S. at 699). 

 The police officers saw defendant standing and walking upon 

property they knew was abandoned and posted "no trespassing." 

Defendant's actions gave the officers probable cause to believe 

he was committing a Class 1 misdemeanor in violation of Code 

§ 18.2-119. Were the police so inclined they could have not only 

stopped and searched defendant, but arrested him. See Jordan v. 

Commonwealth, 207 Va. 591, 596, 151 S.E.2d 390, 394 (1966) ("[A] 

police officer may arrest without a warrant when a misdemeanor is 

committed in his presence, and . . . when a person without 

authority of law goes upon the lands, buildings or premises of 

another after having been forbidden to do so by a sign."). 

Accord Sullivan v. Commonwealth, 210 Va. 201, 203, 169 S.E.2d 
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577, 579 (1969). 

 Defendant argues reasonable suspicion or probable cause may 

not be based upon a crime different from that which the police 

are investigating. In other words, because defendant was seen 

committing a trespass police had no reasonable suspicion to stop 

and ask him who he was, where he was going and whether he carried 

drugs or weapons. This argument is untenable. Courts have 

consistently upheld convictions for crimes which did not flow 

from the activity which formed the basis for the initial 

reasonable suspicion of criminal activity. See, e.g., Ohio v. 

Robinette, 519 U.S. 33 (1996) (defendant stopped for speeding was 

arrested for possession of marijuana); New York v. Class, 475 

U.S. 106 (1986) (defendant stopped for having a cracked 

windshield on vehicle was convicted of firearm possession); 

Jordan, 207 Va. at 596, 151 S.E.2d at 394 (affirming conviction 

of grand larceny after defendant was seen trespassing and was 

initially arrested for "vagrancy"); Jha v. Commonwealth, 18 Va. 

App. 349, 444 S.E.2d 258 (1994) (defendant investigated for 

trespassing and burglary was convicted of fraudulently obtaining 

telephone services). When defendant was seen on abandoned 

property posted with a "no trespassing" sign the police had 

reasonable suspicion to stop and question defendant. Defendant's 

actions of touching or patting his right side, coupled with his 

presence in a high crime area, provided the reasonable suspicion 

defendant was armed and dangerous. Therefore, the subsequent 
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frisk for weapons was lawful. See Troncoso v. Commonwealth, 12 

Va. App. 942, 945, 947, 407 S.E.2d 349, 350-51, 352 (1991) 

(apprehension of dangerousness provided by defendant's "fidgety," 

nervous and sweating behavior). The trial court did not err by 

refusing to suppress the evidence. 

IV. Sufficiency of the Evidence 

 Defendant next contends the evidence was insufficient to 

support either his conviction of possession of cocaine with 

intent to distribute or possession of a firearm while 

simultaneously possessing cocaine. When the sufficiency of the 

evidence is challenged on appeal, we review the evidence in the 

light most favorable to the Commonwealth and grant to it all 

reasonable inferences fairly deducible therefrom. See

Higginbotham v. Commonwealth, 216 Va. 349, 352, 218 S.E.2d 534, 

537 (1975). We may not disturb the convictions unless they are 

plainly wrong or unsupported by the evidence. Traverso v. 

Commonwealth, 6 Va. App. 172, 176, 366 S.E.2d 719, 721 (1988). 

A. Constructive Possession of Cocaine

 The cocaine attributed to defendant was found in the 

passenger compartment of the van in which defendant was 

transported. The Commonwealth admits the police found no drugs 

on defendant's person when they searched him incident to arrest. 

 Therefore, the Commonwealth's theory of the case relies upon 

constructive possession. "To support a conviction based upon 

constructive possession, 'the Commonwealth must point to evidence 
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of acts, statements, or conduct of the accused or other facts or 

circumstances which tend to show that the defendant was aware of 

both the presence and character of the substance and that it was 

subject to his dominion and control.'" Drew v. Commonwealth, 230 

Va. 471, 473, 338 S.E.2d 844, 845 (1986) (quoting Powers v. 

Commonwealth, 227 Va. 474, 476, 316 S.E.2d 739, 740 (1984)). 

 "Although mere proximity to the drugs is insufficient to 

establish possession, and occupancy of [a] vehicle does not give 

rise to a presumption of possession, Code § 18.2-250, both are 

factors which may be considered in determining whether a 

defendant possessed drugs." Josephs v. Commonwealth, 10 Va. App. 

87, 100, 390 S.E.2d 491, 498 (1990) (en banc). In the instant 

matter, the compartment was searched immediately prior to 

defendant's placement within it. He was the sole occupant for 

the entire trip to the police station. He was taken out of the 

compartment and the same officer who had previously searched it 

noticed the bag on the floor. 

 "The Commonwealth is not required to prove that there is no 

possibility that someone else may have planted, discarded, 

abandoned or placed the drugs and paraphernalia in the 

[vehicle]." Brown v. Commonwealth, 15 Va. App. 1, 10, 421 S.E.2d 

877, 883 (1992) (en banc). The evidence, taken as a whole, was 

sufficient to support the trial court's conclusion defendant 

carried the bag into the van and attempted to discard it there 

rather than risk discovery at a later time. 
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B. Intent to Distribute

 Defendant was not convicted of simple possession of cocaine, 

but of possession of cocaine with intent to distribute. "Because 

direct proof of intent is often impossible, it must be shown by 

circumstantial evidence." Servis v. Commonwealth, 6 Va. App. 

507, 524, 371 S.E.2d 156, 165 (1988). "Possession of a small 

quantity creates an inference that the drug is for personal use." 

White v. Commonwealth, 25 Va. App. 662, 668, 492 S.E.2d 451, 454 

(1997) (en banc) (citations omitted). However, other 

circumstances may indicate intent despite the paucity of drugs. 

See Colbert v. Commonwealth, 219 Va. 1, 244 S.E.2d 748 (1978). 

Defendant was found with a relatively large amount of cash on his 

person. The trial court could have inferred this money was the 

fruit of several drug transactions. See id. at 4, 244 S.E.2d at 

749. The cocaine was packaged in several small bags or folds of 

tinfoil, making it easier and more profitable to sell. See id. 

Defendant was also found with a handgun, a common tool of the 

drug-dealer's trade. See Dixon v. Commonwealth, 11 Va. App. 554, 

557, 399 S.E.2d 831, 833 (1991). Finally, defendant told police 

and the trial court he did not use drugs, a fact substantiated by 

a lack of drug usage paraphernalia found on his person. The 

circumstances taken as a whole provide sufficient evidence to 

prove defendant possessed his cocaine with the intent to 

distribute it. 

C. Possession of a Firearm
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 Defendant contends he cannot be found guilty of possession 

of cocaine while simultaneously possessing a firearm unless the 

Commonwealth proved the firearm was in working order. The case 

of Timmons v. Commonwealth, 15 Va. App. 196, 201, 421 S.E.2d 894, 

897 (1992), is directly on point. In Timmons, the defendant was 

found with a pistol which lacked a clip or magazine with which to 

hold ammunition. The pistol was, therefore, completely 

inoperable. Yet this Court found the policy supporting enactment 

of Code § 18.2-308.4 demanded the definition of "firearm" include 

firearms that are not capable of firing a projectile at the time 

of seizure. 

 Even if we were inclined to stray from this rule, 

defendant's pistol provides infertile ground to do so. His 

nine-millimeter pistol included a loaded clip of ammunition. A 

police officer testified he had examined the weapon and it looked 

to be in "good working condition." Further, defendant testified 

he carried the weapon for protection. These facts sufficiently 

proved the weapon was functional. 

V. Conclusion 

 Because the police had reasonable suspicion defendant was 

engaged in criminal activity and he was armed and dangerous, we 

hold they did not violate defendant's Fourth Amendment liberties 

when they stopped and searched him. The evidence thus obtained 

is sufficient to support his convictions. Therefore, his 

convictions are affirmed. 
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 Affirmed.