COURT OF APPEALS OF VIRGINIA 

Present: Judges Clements, Agee* and Felton 

Argued at Richmond, Virginia 

JAMES SLYVESTER JONES 

 MEMORANDUM OPINION** BY 

v. Record No. 1077-02-2 JUDGE WALTER S. FELTON, JR. 

 APRIL 1, 2003 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE 

Edward L. Hogshire, Judge 

 Vanessa E. Hicks, Assistant Public Defender, 

for appellant. 

 Stephen R. McCullough, Assistant Attorney 

General (Jerry W. Kilgore, Attorney General; 

Linwood T. Wells, Jr., Assistant Attorney 

General, on brief), for appellee. 

 James Jones was convicted in a bench trial of attempting to 

possess cocaine, in violation of Code §§ 18.2-257 and 18.2-250, 

and possessing a firearm after having been convicted of a 

felony, in violation of Code § 18.2-308.2. On appeal, Jones 

contends the trial court erred: (1) in denying his motion to 

suppress the evidence; (2) in admitting the juvenile records 

because the Commonwealth failed to prove that the juvenile 

 

* Justice Agee participated in the hearing and decision of 

this case prior to his investiture as a Justice of the Supreme 

Court of Virginia.

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

designated for publication.
petition in fact pertained to him; and (3) in finding the 

evidence sufficient beyond a reasonable doubt to convict him of 

possessing a firearm after having been convicted of a felony. 

For the following reasons, we affirm in part and reverse in 

part. 

I. BACKGROUND

 On July 23, 2000, at approximately 10:30 p.m., Officers 

Brian O'Donnell, Joseph Trahey, and Greg Annis of the 

Charlottesville Police Department were traveling on foot in the 

vicinity of 321 Sixth Street. The officers were in the area 

because of numerous complaint calls to the police department 

regarding drug dealing in front of the residence at 321 Sixth 

Street. The officers approached the residence from the backyard 

and observed three young males standing in front on the 

sidewalk. As the officers approached them, the three men 

dispersed and ran. Jones and another man ran towards Cherry 

Avenue with Officer Annis in pursuit. 

 Officer O'Donnell noticed that as Jones ran away, he was 

also crouching over. As a result, Officer O'Donnell shone his 

flashlight on Jones and saw that he had a gun in his right hand.1 

Officer O'Donnell yelled "Gun," and commanded Jones to "[g]et on 

the ground." Subsequently, Officer O'Donnell wrestled him to 

the ground. As he did so, he heard the sound of Jones' gun hit 

 1

 Jones does not dispute that he possessed the gun at the 

time of the confrontation. 

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the pavement. Once Jones was on the ground, Officer O'Donnell 

handcuffed and searched him while Officer Trahey recovered the 

gun. 

 During the search, Officer O'Donnell recovered from Jones' 

right rear jeans pocket, a knotted plastic bag containing nine 

off-white, rock-like substances. At that point, Officer 

O'Donnell placed Jones under arrest for drug possession. Jones 

was taken to the police department and read his Miranda rights.2 

He signed a waiver of those rights and subsequently admitted to 

Officer O'Donnell that he had the gun for about two months. He 

further stated that the substance found in his pocket was crack 

cocaine, worth approximately $120, that he used to lace 

marijuana. Jones was charged with attempting to possess 

cocaine,3 in violation of Code § 18.2-257 (18.2-250), and 

possession of a firearm after having been convicted of a felony, 

in violation of Code § 18.2-308.2. 

 On October 19, 2001, a hearing was held whereby Jones 

requested suppression of the suspected cocaine, the firearm, and 

any statements he made after being detained, on the grounds that 

he was illegally seized, detained, and searched by officers of 

 2 Miranda v. Arizona, 384 U.S. 436 (1966). 

3

 Chemical analysis determined that the substance recovered 

from Jones was 1.030 grams of aspirin. Because the substance 

seized from Jones was not actually cocaine, the substance he 

thought he possessed, he was charged with attempted possession 

of cocaine. 

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the Charlottesville Police Department. At the hearing, Officer 

O'Donnell was called to testify, among other things, as to why 

he had conducted the search of Jones. He testified that when he 

handcuffed Jones he was placing him into "investigative 

detention," not arresting him because he had a gun in his hand 

when he ran from the police. Officer O'Donnell expressed 

concern that Jones might still have a weapon. 

 When asked why he conducted the search, the following 

colloquy ensued: 

[OFFICER O'DONNELL]: Basically, the time of 

night, the numerous calls to the area about 

specifically drug dealing, the fact that 

[Jones] broke and ran at police presence and 

the fact that he had a firearm on his person 

-– well, in his hand as he ran. Those 

things all together. I believed – I was 

fairly certain that there were some type of 

narcotics or other illegal substance on his 

person. 

MR. ZUG [Commonwealth's attorney]: And what 

is it about those factors that lead you to 

believe that – or led you to believe at that 

time? 

[OFFICER O'DONNELL]: My training experience 

with people that I've arrested in the past. 

The trial court denied Jones' motion to suppress. It held: 

I think unless he's involved in this 

vigorous flight and we have to be taken into 

custody in that fashion and he's actually 

cuffed and all, I think that under all those 

circumstances I think he certainly was 

reasonable in being detained at least to the 

point of checking the status of that weapon 

and the status of the defendant in relation 

to the weapon. It, you know, again, it's 

not a -– to me it's not a, what you call, 

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slam dunk issue. I think it's an area that 

you could debate about. 

But, I really believe that the – I don't 

think there was a – the probable cause. I'm 

not satisfied absent the stop that there was 

probable cause to search him. You see, I 

think once the weapon gets out there, I find 

that there is probable cause to detain him. 

And combined with the flight and the 

association with the drug activity in the 

neighborhood, that all of that gives rise 

to, certainly, a basis for a detention for 

investigation. I think that's what the 

officer did. And I think that would have 

inevitably led to the finding of the drugs. 

I think the officer, when a weapon is out 

there, if he finds anything in the pocket 

during the search that could conceivably be 

a weapon, certainly he'd be able to search 

him for that. 

But I think basically that –- the way I'm 

coming down on this is a bit of inevitable 

discovery in the context of the 

investigation. And that's really what I 

think the answer to this. 

 At trial, Jones objected to the admission of certified 

copies of juvenile and domestic relations district court records 

to prove a prior felony conviction. He contended that the word 

"Petition" on one document was hearsay, that the document's 

admission violated his right to confront witnesses, and the 

documents reflected that the social security number of the 

person named was unknown. Officer O'Donnell testified that the 

records were obtained using information provided by Jones, 

including his name, date of birth, and social security number. 

The trial court admitted the juvenile records into evidence. On 

October 19, 2001, Jones was found guilty of attempting to 

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possess cocaine and possessing a firearm after having been 

convicted of a felony. 

II. ATTEMPTED POSSESSION OF COCAINE

 We first consider whether the trial court erred in denying 

Jones' motion to suppress the evidence. Jones contends that the 

police exceeded the scope of a legal Terry stop when they seized 

cocaine from his person.4 Furthermore, the evidence did not 

support the application of the inevitable discovery exception to 

the exclusionary rule. As a result, he argues that the trial 

court should have suppressed the evidence. We agree. 

 In reviewing the trial court's denial of a motion to 

suppress, the defendant has the burden to show that the ruling, 

when the evidence is viewed in the light most favorable to the 

Commonwealth, was reversible error. Murphy v. Commonwealth, 264 

Va. 568, 573, 570 S.E.2d 836, 838 (2002). "A defendant's claim 

that evidence was seized in violation of the Fourth Amendment 

presents a mixed question of law and fact that we review de novo

on appeal." Id.; see also Ornelas v. United States, 517 U.S. 690, 

691 (1996). "In making such a determination, we give deference to 

the factual findings of the trial court and independently 

determine whether the manner in which the evidence was obtained 

meets the requirements of the Fourth Amendment." Murphy, 264 Va. 

at 573, 570 S.E.2d at 838. 

 4 Terry v. Ohio, 392 U.S. 1 (1968). 

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A. TERRY STOP

 "The United States Supreme Court has articulated 'a narrowly 

drawn authority to permit a reasonable search for weapons for the 

protection of the police officer where [the police officer] has 

reason to believe that he is dealing with an armed and dangerous 

individual.'" Hall v. Commonwealth, 22 Va. App. 226, 228, 468 

S.E.2d 693, 694 (1996) (quoting Terry v. Ohio, 392 U.S. 1, 27 

(1968)). However, the authority to conduct a pat-down search does 

not follow automatically from the authority to effectuate an 

investigative stop. Harrell v. Commonwealth, 30 Va. App. 398, 

403, 517 S.E.2d 256, 258-59 (1999). "Once a police officer has 

properly detained a suspect for questioning he may conduct a 

limited pat-down search for weapons if he reasonably believes that 

the suspect might be armed and dangerous." Moore v. Commonwealth, 

12 Va. App. 404, 406, 404 S.E.2d 77, 77 (1991) (quoting Williams 

v. Commonwealth, 4 Va. App. 53, 66, 354 S.E.2d 79, 86 (1987)). 

"The purpose of this 'pat-down' search is not to uncover evidence 

of criminal activity, but to permit the officer to conduct his 

investigation without encountering a violent response." Murphy, 

264 Va. at 573-74, 570 S.E.2d at 839. 

 If during a lawful pat-down for weapons of a suspect's 

outer clothing a police officer feels an object whose contour or 

mass makes its identity immediately apparent, there has been no 

invasion of the suspect's privacy beyond that already authorized 

by the officer's search for weapons. Minnesota v. Dickerson, 

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508 U.S. 366, 375-76 (1993). "[I]f the object is contraband, 

its warrantless seizure would be justified by the same practical 

considerations that inhere in the plain-view context." Id.

 In the case before us, Officer O'Donnell conducted an 

unlawful search of Jones and unlawfully seized from his rear 

jeans pocket, a plastic bag containing what appeared to be nine 

rocks of crack cocaine. There is no question that the initial 

stop of Jones was proper. When Jones saw the police officer 

approaching him, he fled carrying a handgun in his right hand. 

When apprehended by Officer O'Donnell, Jones lost possession of 

the weapon. Another officer subsequently recovered it. Officer 

O'Donnell testified that he handcuffed Jones and placed him in 

investigative detention. Officer O'Donnell was clear in stating 

that Jones was not placed under arrest at that time.5

 When asked at the suppression hearing why he conducted the 

search of Jones, Officer O'Donnell stated: 

Basically, the time of night, the numerous 

calls to the area about specifically drug 

dealing, the fact that [Jones] broke and ran 

at police presence and the fact that he had 

a firearm on his person -- well, in his hand 

as he ran. Those things all together. I 

believed - I was fairly certain that there 

were some types of narcotics or other 

illegal substance on his person. 

 5

 Since Jones was not under arrest at the time of the 

search, we need not determine whether the search was incident to 

a lawful arrest. 

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(Emphasis added). Officer O'Donnell's stated intent in 

conducting a search of Jones was to recover narcotics or other 

illegal substances, not to determine whether Jones had 

additional weapons on his person. We therefore conclude that 

Officer O'Donnell's actions exceeded the permissible scope of 

the limited search for weapons. 

B. INEVITABLE DISCOVERY

 The trial court incorrectly relied on the doctrine of 

inevitable discovery in reaching its decision regarding the 

issue of attempted possession of cocaine. Application of the 

doctrine of inevitable discovery requires the Commonwealth to 

show three things: (1) a reasonable probability that the 

evidence in question would have been discovered by lawful means, 

but for the police misconduct; (2) the leads making discovery 

inevitable were possessed by the police at the time of the 

misconduct; and (3) the police also prior to the misconduct were 

actively pursuing the alternative line of investigation. Walls 

v. Commonwealth, 2 Va. App. 639, 656, 347 S.E.2d 175, 185 

(1986). The Commonwealth failed to prove the existence of these 

factors in this case. There was no specific complaint 

concerning Jones, so there were no leads for the police to 

follow prior to the police misconduct. In addition, Officer 

O'Donnell was not actively pursuing any alternative line of 

investigation. The inevitable discovery cannot be the direct 

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result of the initial unlawful search, but rather must be 

independent of it. 

 We reverse the judgment of the trial court finding Jones 

guilty of attempted possession of cocaine and order the charge 

dismissed. 

III. ADMISSION OF JUVENILE RECORDS

 We next consider whether the trial court erred in admitting 

the juvenile petition and accompanying records. 

"The admissibility of evidence is within the 

broad discretion of the trial court, and a 

ruling will not be disturbed on appeal in 

the absence of an abuse of discretion." 

Blain v. Commonwealth, 7 Va. App. 10, 16, 

371 S.E.2d 838, 842 (1988). "Evidence is 

admissible if it is both relevant and 

material." Evans-Smith v. Commonwealth, 5 

Va. App. 188, 196, 361 S.E.2d 436, 441 

(1987). 

Braxton v. Commonwealth, 26 Va. App. 176, 186, 493 S.E.2d 688, 

692 (1997). 

 The Commonwealth offered as evidence a certified copy of a 

petition and accompanying papers from the Charlottesville 

Juvenile and Domestic Relations District Court. The petition 

indicated that the records were those of James Sylvester Jones. 

However, the social security number was shown as unknown. Jones 

contends that the Commonwealth failed to prove that the juvenile 

petition in fact pertained to him and as a result, should not 

have been admitted into evidence. We disagree. 

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 Officer O'Donnell testified that the petition and 

accompanying records were obtained using information provided by 

Jones. Jones supplied Officer O'Donnell with his name, date of 

birth, and social security number. With that information in 

hand, Officer O'Donnell obtained the petition and accompanying 

records. The trial court did not abuse its discretion in 

admitting the juvenile petition and accompanying records. 

IV. POSSESSION OF A FIREARM BY A CONVICTED FELON

 We lastly consider whether the evidence was sufficient to 

convict Jones of possessing a firearm after having been 

convicted of a felony. 

When the sufficiency of the evidence is 

challenged on appeal, it is well established 

that we must view the evidence in the light 

most favorable to the Commonwealth, granting 

to it all reasonable inferences fairly 

deducible therefrom. The conviction will be 

disturbed only if plainly wrong or without 

evidence to support it. 

Jones v. Commonwealth, 13 Va. App. 566, 572, 414 S.E.2d 193, 196 

(1992). 

 Code § 18.2-308.2 states in relevant part: 

A. It shall be unlawful for (i) any person 

who has been convicted of a felony or (ii) 

any person under the age of twenty-nine who 

was found guilty as a juvenile fourteen 

years of age or older at the time of the 

offense of a delinquent act which would be a 

felony if committed by an adult . . . to 

knowingly and intentionally possess or 

transport any firearm or to knowingly and 

intentionally carry it about his 

person . . . . 

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Jones contends that there was a fatal variance between the 

allegations in the indictment and the proof of the crime. He 

argues that the Commonwealth chose to prosecute him under Code 

§ 18.2-308.2(A)(i). However, instead of attempting to prove a 

felony conviction under Code § 18.2-308.2(A)(i), the 

Commonwealth proceeded to prove a violation under Code 

§ 18.2-308.2(A)(ii) without amending the charge. We disagree. 

 Jones was indicted under the broad provisions of Code 

§ 18.2-308.2. He was given fair notice of the charges against 

him. He was put on notice that he would have to defend against 

being in possession of a weapon after having been convicted of 

either a felony or a delinquent act as a juvenile that would 

have been a felony if it had been committed by an adult. See 

generally Buchanan v. Commonwealth, 238 Va. 389, 397-98, 384 

S.E.2d 757, 762-63 (1989). Thus, his argument is without merit. 

What remains to be determined is whether Jones was in possession 

of a weapon and whether the evidence was sufficient to prove 

beyond a reasonable doubt his status as a convicted felon. As 

to each issue, we answer in the affirmative. 

 At trial, Jones conceded the fact that he was in possession 

of a weapon when he encountered Officer O'Donnell. Furthermore, 

the evidence supported the trial court's finding that Jones was 

a person prohibited from possessing weapons within the statutory 

definition. The Commonwealth presented evidence that Jones was 

born on May 29, 1980. In addition, it presented evidence that 

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Jones was found guilty on a juvenile petition for unlawful 

wounding, a felony if committed by an adult. 

 An adjudicatory hearing was held on November 1, 1994. 

Jones entered a guilty plea that was accepted by the juvenile 

and domestic relations district court. The petition reflects a 

finding of guilty from which it can be reasonably inferred that 

the juvenile court found Jones guilty of the offense charged in 

the petition. 

 The Commonwealth presented evidence from which the court 

could reasonably conclude that Jones was under the age of 

twenty-nine when the present offense was committed and that he 

was fourteen years of age or older when adjudicated guilty of 

unlawful wounding, an offense that would have been a felony if 

committed by an adult. The evidence was sufficient beyond a 

reasonable doubt to convict Jones of a violation under Code 

§ 18.2-308.2. 

 We affirm the judgment of the trial court finding Jones 

guilty of possessing a firearm after having been convicted of a 

felony. 

V. CONCLUSION

 We find that the trial court erred in denying Jones' motion 

to suppress the evidence of the contraband seized from him. 

Accordingly, we reverse the judgment of the trial court and 

order the charge of attempted possession of cocaine be 

dismissed. We also find that the trial court did not err in 

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admitting Jones' juvenile records and, therefore, affirm the 

judgment of the trial court, admitting the evidence. We further 

find that the evidence was sufficient beyond a reasonable doubt 

to convict Jones of possession of a firearm after having been 

convicted of a felony, and affirm the trial court's judgment of 

conviction. 

 Affirmed in part, 

reversed and 

dismissed in part.

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