COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Humphreys and Senior Judge Hodges 

Argued by teleconference 

COMMONWEALTH OF VIRGINIA 

 MEMORANDUM OPINION* BY 

v. Record No. 0759-03-1 JUDGE JAMES W. BENTON, JR. 

 JULY 18, 2003 

ERIC LAMONT FLYTHE 

FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY 

Rodham T. Delk, Jr., Judge 

 Steven A. Witmer, Assistant Attorney General 

(Jerry W. Kilgore, Attorney General, on 

brief), for appellant. 

 Anthony J. Nicolo (Ferrell, Sayer & Nicolo, 

P.C., on brief), for appellee. 

 The grand jury indicted Eric Lamont Flythe for possession of 

cocaine with intent to distribute. The Commonwealth appeals from 

the trial judge's pretrial order granting Flythe's motion to 

suppress evidence. See Code § 19.2-398. For the reasons that 

follow, we affirm the order. 

 I. 

 "Upon appeal from a trial [judge's] ruling on a motion to 

suppress, we must view the evidence in the light most favorable to 

the prevailing party, in this instance [Flythe], granting to him 

all reasonable inferences fairly deducible from the evidence." 

 

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

designated for publication.
Commonwealth v. Spencer, 21 Va. App. 156, 159, 462 S.E.2d 899, 901 

(1995). Moreover, "we are bound by the trial [judge's] findings 

of historical fact unless 'plainly wrong' or without evidence to 

support them." McGee v. Commonwealth, 25 Va. App. 193, 198, 487 

S.E.2d 259, 261 (1997) (en banc). Viewed in this light, the 

evidence at the suppression hearing proved that Lynn Lawson, a 

convicted drug felon, approached Detective Walter Joyner on the 

street while the detective was investigating an incident unrelated 

to this prosecution. The detective testified that Lawson, who was 

"not a, per se, informant" but had "provided information to [the 

detective] in the past," said he had seen Antwon Hicks and Eric 

Lamont Flythe "selling crack cocaine and that they've got guns and 

they were the same people that shot at him before." The detective 

testified he asked Lawson "specifically did he see them selling 

crack." Lawson said he did and described the vehicle, giving a 

specific license plate number and a location. 

 When the detective drove to the location Lawson indicated, he 

did not see the vehicle. The detective testified that after he 

drove "up and down the street" looking for the vehicle, Lawson 

again approached him and said the vehicle was at an apartment 

complex. The detective drove to the apartments; however, he did 

not see the vehicle at that location. As the detective drove from 

the apartments, he received information from another officer and 

drove a distance of four blocks where he saw the vehicle. 

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Although Lawson had said two men were in the vehicle, the 

detective testified three men were in the vehicle when he saw it. 

 The detective and two officers followed the vehicle, 

"eventually" made the stop, and approached the vehicle with their 

guns unholstered. Flythe asked why he had been stopped. The 

detective told him they "had information he was dealing crack 

cocaine and had guns in the vehicle." When Flythe denied having 

guns, the detective ordered him to exit the vehicle. The 

detective testified that although Flythe was not under arrest, he 

was not free to leave. He described the reason for detaining 

Flythe as follows: 

I would characterize it as we had 

information on individuals committing 

felonies and we were stopping them, 

consistent with the information we were 

given, and we were going to search them and 

do what we were suppose to do and that's why 

we stopped them. 

 The detective testified that Flythe continuously said he 

did not have drugs or guns and "was being evasive." At one 

point, when Flythe "stuck his hand in his left pocket" and 

protested that the detective could not search him, the detective 

pointed his gun at him and ordered him to put his hand on the 

vehicle. The detective testified that the following events 

occurred after he put cuffs on Flythe's wrists: 

 I walked him over to my patrol car and as 

we got there, I began to pat him down and I 

was feeling his right pocket. And in the 

process of feeling that I felt what appeared 

to be a rather linear object. It wasn't 

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solid like a brick, but it appeared solid to 

me at the time. And I felt what I believed 

to be a plastic bag. And through feeling 

that, I felt hard objects in that. And from 

my experience of being a drug enforcement 

officer, I felt possibly he did have drugs 

in his pocket, so I went in his pocket and 

took that out, as well as the linear object 

at the same time. 

* * * * * * * 

 After I found that, then I placed him 

under arrest for possession of cocaine with 

intent to distribute and continued to search 

him. Then I found another baggy in his left 

pocket which contained what appeared to be 

crack cocaine. 

 The detective further explained that when he "felt the 

plastic [during the frisk, he] was feeling all of it to try to 

find out what he had in his pocket." He also testified that the 

"linear object" was a piece of cloth. Another officer detained 

the passengers and arrested one of them for possessing a firearm 

after having been convicted of a felony. 

 Lawson testified that he was a probationer when these 

events occurred and that he had been convicted of six felonies, 

most of which were drug related. He described his participation 

as follows: 

I was traveling Downtown Franklin. . . . It 

was me and my friend. And as I was going to 

the light. I looked over to the right. I 

seen [Flythe] on the phone. So I went over 

in the parking lot. . . . [H]e came to the 

van and the conversation was that I asked 

him why did he shoot at me [several months 

earlier] and he said that he thought I had a 

gun, that's why he shot at me. That was the 

conversation. 

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Q: Y'all shook hands and left peacefully; 

did you not? 

A: Yes, sir. 

* * * * * * * 

Q: And later on that evening you saw 

Detective Joyner? 

A: Yes, sir. 

Q: Tell the Judge, please, about your 

conversation with him. 

A: I told Joyner that it was an unknown 

number called my house, saying that Eric and 

his cousin were looking for me with a gun. 

Q: You specifically told that to Detective 

Joyner? 

A: Yes, sir. 

* * * * * * * 

Q: And that person said that [Flythe] and a 

friend of his had a gun and they were 

looking for you? 

A: Yes. 

Q: And that's the specific information you 

gave to Detective Joyner? 

A: (Witness nodding affirmatively.) Well, 

I said that they were looking for me with a 

gun, right, and then I said -- I asked him 

did he know [Flythe]. He said, "Yeah, I 

know him, because of the incident that 

happened between y'all like seven months 

ago. He shot at you and you came to the 

police station and told the police." But I 

didn't take no warrant out on him. 

* * * * * * * 

Q: Did you give Detective Joyner a 

description of the vehicle? 

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A: Yeah, I told him it was a burgundy car, 

Honda Accord. 

Q: Did you give him the license plate 

number at that time? 

A: Yes, sir. 

On cross-examination, Lawson testified that he did not know 

whether Flythe and his passenger had guns or drugs when he saw 

them in the parking lot. 

 Finding that the officer received a report "that Mr. Flythe 

had a gun . . . I don't recall anybody saying they saw him 

brandish a gun, use a gun," the trial judge ruled that the 

officers had conducted "a proper Terry investigative stop." The 

trial judge also found "that this [detention] is not an arrest, 

this is not a search incident to an arrest, . . . I've heard 

nothing to stand for that proposition." When the prosecutor 

argued "there was an arrest" the trial judge responded "the 

Court's already ruled" and further noted as follows: 

 [T]he only information, when he searched 

Mr. Flythe, was an informant's information. 

And I don't think we go around arresting 

people just because an informant hits the 

license plate number correct. It takes more 

than that. 

 II. 

 "At a hearing on a defendant's motion to suppress, the 

Commonwealth has the burden of proving the challenged action did 

not violate the defendant's constitutional rights." Russell v. 

Commonwealth, 33 Va. App. 604, 604, 535 S.E.2d 699, 701 (2000). 

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Although "[t]he test of constitutional validity 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), 

"[p]robable cause to arrest must exist exclusive of the incident 

search." Russell, 33 Va. App. at 604, 535 S.E.2d at 702. 

 At the hearing, the prosecutor contended that the officer 

searched Flythe incident to an arrest. The trial judge found 

that although the officer had reasonable articulable suspicion 

sufficient to detain Flythe, the officer's search of Flythe was 

not predicated upon an arrest. He specifically found "this is 

not an arrest . . . because the only information, when he 

searched Mr. Flythe, was [a criminal] informant's information." 

In short, the judge found that the officer detained Flythe under 

Terry, not for an arrest, and that the frisk must be governed by 

Terry standards. 

 Despite the ruling by the trial court that no arrest had 

occurred, the prosecutor persisted in arguing that the search 

was justified as incident to arrest. The prosecutor advanced no 

other argument before the trial court to support the validity of 

the search at issue. 

 On appeal the Commonwealth does not contend the trial judge 

erred in ruling the officer's detention of Flythe was not an 

arrest. Instead, the Commonwealth contends the evidence proved 

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probable cause to make an arrest and to search incident to that 

arrest. However, because the Commonwealth failed to raise this 

argument before the trial court, we do not consider it for the 

first time on appeal. See Rule 5A:18; see also West Alex. Prop. 

v. First Va. Mort., 221 Va. 134, 138, 267 S.E.2d 149, 151 (1980) 

("On appeal, though taking the same general position as in the 

trial court, an appellant may not rely on reasons which could 

have been but were not raised for the benefit of the lower 

court."); Floyd v. Commonwealth, 219 Va. 575, 584, 249 S.E.2d 

171, 176 (1978) (holding that appellate court will not consider 

an argument on appeal that is different from the specific 

argument presented to the trial court, even if it relates to the 

same general issue). 

 Accordingly, we affirm the judgment. 

 Affirmed. 

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