COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Annunziata and Senior Judge Coleman 

Argued at Richmond, Virginia 

LEWIS IDERICK JOHNSON 

 MEMORANDUM OPINION* BY 

v. Record Nos. 1438-02-2, JUDGE SAM W. COLEMAN, III 

 2019-02-2 and 2050-02-2 APRIL 29, 2003 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Robert W. Duling, Judge Designate 

 Craig W. Stallard, Assistant Public Defender, 

for appellant. 

 Kathleen B. Martin, Assistant Attorney 

General (Jerry W. Kilgore, Attorney General, 

on brief), for appellee. 

 On appeal from a conviction for possession of cocaine with 

the intent to distribute, Lewis Iderick Johnson challenges the 

denial of his motion to suppress. Johnson contends the police did 

not have probable cause to arrest him and that, as a result, his 

post-arrest statements were inadmissible. Finding that the trial 

court erred in denying Johnson's motion to suppress, we reverse 

Johnson's conviction. 

I. 

 In reviewing a trial court's ruling on a motion to 

suppress, this Court reviews the "evidence adduced at both the 

 

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

designated for publication.
trial and suppression hearing," Greene v. Commonwealth, 17 

Va. App. 606, 608, 440 S.E.2d 138, 139 (1994), and views the 

evidence in the light most favorable to the prevailing party. 

See Spivey v. Commonwealth, 23 Va. App. 715, 721, 479 S.E.2d 

543, 546 (1997). "'The burden is upon [the defendant] to show 

that th[e] ruling, when the evidence is considered most favorably 

to the Commonwealth, constituted reversible error.'" McGee v. 

Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en

banc) (citation omitted). While we are bound to review de novo

the ultimate questions of reasonable suspicion and probable cause, 

Ornelas v. United States, 517 U.S. 690, 699 (1996), "[i]n 

performing such analysis we are bound by the trial court's 

findings of historical fact unless 'plainly wrong' or without 

evidence to support them." McGee, 25 Va. App. at 198, 487 S.E.2d 

at 261. 

 So viewed, the evidence proved that at about 5:30 p.m. on 

September 1, 2001, Officers William Breedlove and Richard Lloyd 

stopped their marked police vehicle near a group of three or 

four men, who were standing beside a building in the 1000 block 

of North 20th Street in Richmond. Johnson was among the group. 

As the police vehicle stopped, Johnson walked from the side of 

the building to the rear of the building and briefly disappeared 

from the officers' sight. A few seconds later, Johnson rejoined 

the group. 

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 Breedlove and Lloyd approached the men and had a short 

conversation with them. Breedlove followed the path he had seen 

Johnson take to the rear of the building, and Breedlove searched 

the area. On top of a concrete awning at a door to a residence 

in the rear of the building, he found a plastic bag containing 

twenty-one individually wrapped pieces of crack cocaine. The 

location of the bag was eight to nine feet above the ground. 

Breedlove testified that the placement of the drugs "wasn't so 

high that you couldn't pitch it right above your head." The 

door above which the drugs were found was located two feet from 

the corner of the building. 

 The officers immediately placed appellant under arrest. 

After appellant was advised of his rights under Miranda v. 

Arizona, 384 U.S. 436 (1966), appellant admitted that the drugs 

were his and that he had intended to sell them. 

II. 

 "The test of constitutional validity [of a warrantless 

arrest] 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). "To establish probable cause, the Commonwealth must 

show 'a probability or substantial chance of criminal activity, 

not an actual showing of such activity.'" Ford v. City of 

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Newport News, 23 Va. App. 137, 143-44, 474 S.E.2d 848, 851 

(1996) (citations omitted). 

"The presence or absence of probable cause 

is not to be examined from the perspective 

of a legal technician. Rather, probable 

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. In order to 

ascertain whether probable cause exists, 

courts will focus upon 'what the totality of 

the circumstances meant to police officers 

trained in analyzing the observed conduct 

for purposes of crime control.'" 

Parker v. Commonwealth, 255 Va. 96, 106, 496 S.E.2d 47, 53 

(1998) (citations omitted). Therefore, we must determine, based 

upon the totality of the circumstances, if Johnson's warrantless 

arrest was justified by a reasonable belief that he was engaging 

in criminal activity. 

 Both the Supreme Court of Virginia and this Court have had 

opportunities to consider whether the police had probable cause 

to arrest a defendant who either threw away or hid an object 

when the police arrived. In McCain v. Commonwealth, 261 Va. 483, 

487, 434 S.E.2d 541, 543 (2001), police officers found Elbert 

McCain in the driver's seat of a parked vehicle and requested his 

identification. McCain agreed to the search of the car, refused 

to permit the police to search his person, and then walked away 

from the officers. McCain walked to an apartment door behind a 

set of stairs leading to the second floor. Through openings in a 

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wall, an officer saw the shadow of an arm reach out and heard the 

sound of a metal object making contact with metal. Retracing 

McCain's path to the area behind the stairs, the officer found a 

handgun in a metal grocery cart. Id. at 487, 454 S.E.2d at 543. 

McCain fled when the officer confronted him with the weapon. The 

Court concluded that the police possessed probable cause to arrest 

McCain for the possession of a concealed weapon upon the officer's 

discovery of the firearm in the grocery cart and McCain's 

attempted flight. Id. at 491, 454 S.E.2d at 546. 

 In Thomas v. Commonwealth, 38 Va. App. 49, 52, 561 S.E.2d 

754, 755 (2002), police officers patrolling a high crime area 

saw the defendant and two other men standing near a convenience 

store that was posted with "no trespassing" signs. As the 

officers questioned the men about their presence and outstanding 

warrants, id. at 52, 561 S.E.2d at 756, the defendant made a 

throwing motion toward the back of a soda machine. The officers 

saw no item leave the defendant's hand, looked behind the soda 

machine, but found only litter. Several minutes later, after 

the police had released the defendant, the officers again 

searched the area behind the soda machine and found a plastic 

bag containing cocaine against a chain link fence near the 

machine. Id. at 53, 561 S.E.2d at 756. We concluded that the 

police lacked probable cause to arrest the defendant and noted 

that the defendant's hand motion "'was not combined with any 

other circumstance which might have justified a rational belief' 

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that [he] had thrown the bag . . . ." Id. at 54, 561 S.E.2d at 

756 (quoting Matthews v. Commonwealth, 218 Va. 1, 3, 235 S.E.2d 

306, 307 (1977)). 

 The totality of the circumstances in the present case was 

less indicative or suggestive of criminal activity than that 

considered, and found deficient, in Thomas. In this case, 

Johnson disappeared from the police officers' vision for a few 

seconds. They did not observe Johnson make a throwing motion or 

any gesture suggesting that he was secreting an object. The 

discovery, moments later, of the bag of drugs above the area to 

which Johnson had walked, but which was accessible to many 

others, created a suspicion that he may have placed the bag of 

drugs on the awning. This mere suspicion, however, did not 

provide the police officers with probable cause to arrest 

appellant for the possession of cocaine. "[P]robable cause 

. . . must be based on more than speculation, suspicion, or 

surmise." Alexander v. Commonwealth, 19 Va. App. 671, 674, 454 

S.E.2d 39, 41 (1995). Accordingly, appellant's arrest was 

unlawful. 

 The record contains no evidence that Johnson's statements 

did not flow directly from the unlawful arrest or that "the 

connection between the arrest and the statement[s] was so 

attenuated as to purge the taint of the unlawful arrest." 

Thomas, 38 Va. App. at 55, 561 S.E.2d at 757. Therefore, 

Johnson's statements were inadmissible. 

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 For the foregoing reasons, the trial court erred in denying 

the motion to suppress appellant's statements. Accordingly, 

Johnson's conviction is reversed, and because the conviction 

could not stand without Johnson's admissions, the indictment 

against him is dismissed. 

 Reversed and dismissed.

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