COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Humphr eys and Senior Judge Annunziata Argued at Richmond, Virginia

TAVARES LAMONT BROWN MEMORANDUM OPINION * BY v. Record No. 0339-08-2 JUDGE LARRY G. ELDER JANUARY 13, 2009 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Bradley B. Cavedo, Judge (Paul F. Fantl, on briefs), for appellant. Appellant submitting on briefs. Virginia B. Theisen, Senior As sistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Tavares Lamont Brown (appellant) appeals fr om his bench trial conviction for possessing cocaine with an intent to distribut e. On appeal, he contends the trial court erroneously denied his motion to suppress the cocaine because it was found in a search pursu ant to a narcotics arrest for which the officer lacked probable cause. We ag ree that the officer lacked probable cause to arrest appellant for possession of the cocaine found on the ground in a folded lottery slip. Accordingly, we reverse appe llant’s conviction and remand fo r further proceedings if the Commonwealth be so advised. On appeal of a ruling on a motion to suppre ss, we view the evidence in the light most favorable to the prevailing party, here th e Commonwealth, granting to the evidence all reasonable inferences fairly deducible therefrom. Commonwealth v. Grimstead , 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). “[W]e are bound by th e trial court’s findings of historical

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - fact unless ‘plainly wrong’ or without evidence to suppor t 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). We review de novo the trial court’s application of defined le gal standards, such as whether the police had reasonable suspicion or probable cause for a search or seizure. Ornelas v. United States , 517 U.S. 690, 699, 116 S. Ct. 1657, 1663, 134 L. Ed. 2d 911, 920 (1996). Appellant concedes Officer Warner had proba ble cause to issue him a summons for the open container violation and to frisk him for weapons based on hi s furtive hand gestures. He contends, however, that Officer Warner lacked reasonable suspicion to de tain him further while he continued to investigate the na rcotics offense and also lacked probable cause to arrest him for possessing narcotics. We hold the ongoing deten tion for further investigation was reasonable under the circumstances but that Officer Warner lacked probable cause to arrest appellant for possessing the cocaine found in the folded lottery slip on the ground. 1 An officer may effect a Terry stop if he becomes aware of facts that “lead[ ] him reasonably to believe in light of his experience that criminal ac tivity may be afoot” and that the person he detains is involved in it. Terry v. Ohio , 392 U.S. 1, 30, 88 S. Ct. 1868, 1884, 20 L. Ed. 2d 889, 911 (1968). An officer who devel ops such reasonable suspicion concerning a person may stop that person “in order to identify him, to question him briefly, or to detain him briefly, while attempting to obtain additional info rmation” in order to confirm or dispel his suspicions. Hayes v. Florida , 470 U.S. 811, 816, 105 S. Ct. 1643, 1647, 84 L. Ed. 2d 705, 711 (1985). The Supreme Court has not adopted a ny “outside time limitation for a permissible Terry

1 The Commonwealth did not argue that the s earch of appellant’s person was legitimized by anything other than an arrest for possessing cocaine and, thus, the trial court was not called upon to determine whether Officer Warner may have had some other constitutionally permissible basis for arresting and searching him.- 3 - stop,” United States v. Place , 462 U.S. 696, 709 & n.10, 103 S. Ct. 2637, 2646 & n.10, 77 L. Ed. 2d 110, 122 & n.10 (1983) (rejecting ninety-m inute seizure of traveler’s luggage at airport), and we have recognized, depending on the circumstances, that detentions of forty-five to seventy-five minutes may be reasonable, Limonja v. Commonwealth , 8 Va. App. 532, 543, 383 S.E.2d 476, 483 (1989) (en banc) (involving assessment of the length of a de tention to await the arrival of a “narcotics dog”). “Probable cause [for arrest] exists where ‘the facts and circumstances within [the arresting officers’] knowledge and of which they had reasonably trustworthy information [are] sufficient in themselves to warrant a man of reas onable caution in the belief that’ an offense has been or is being committed” by the person arrested. Brinegar v. United States , 338 U.S. 160, 175-76, 69 S. Ct. 1302, 1310-11, 93 L. Ed. 1879, 1890 (1949) (quoting Carroll v. United States , 267 U.S. 132, 162, 45 S. Ct. 280, 288, 69 L. Ed. 543, 555 (1925)). Where the arrest is for possession of a controlled substance or other c ontraband, proximity to such a substance may be relevant in determining whether probable cause exists, but it is not controlling. See, e.g. , Dodd v. Commonwealth , 50 Va. App. 301, 308, 649 S.E.2d 222, 225 ( 2007). Probable cause to arrest must exist exclusive of the incident search. Wright v. Commonwealth , 222 Va. 188, 278 S.E.2d 849 (1981). When the factual basis for reasonable susp icion or probable cause is provided by an informer, the informer’s (1) ve racity, (2) reliability, and (3) basis of knowledge are “highly relevant” factors in the overall tota lity-of-the-circumstances analysis. Illinois v. Gates , 462 U.S. 213, 230, 233, 103 S. Ct. 2317, 2328, 2329, 76 L. Ed. 2d 527, 543, 545 (1983). “Unlike a tip from a known informant whose reputation can be assessed and who can be held responsible if her allegations turn out to be fabricated, ‘a n anonymous tip alone seldom demonstrates the informant’s basis of knowledge or veracity.’” Florida v. J.L. , 529 U.S. 266, 270, 120 S. Ct.- 4 - 1375, 1378, 146 L.Ed.2d 254, 260 (2000) (quoting Alabama v. White , 496 U.S. 325, 329, 110 S. Ct. 2412, 2415, 110 L. Ed. 2d 301, 308 (1990)) (citation omitted). In order for “an anonymous tip . . . [to] exhibit[] ‘sufficient indi cia of reliability’” to pr ovide probable cause for an arrest or search, it must be “suitably corroborated” by informati on sufficiently predictive so as to establish “the informer’s knowledge or credibility.” Id. at 270-71, 120 S. Ct. at 1378-79, 146 L. Ed. 2d at 260. In order for a tip to provide reasonable suspicion or pr obable cause, the “tip [must] be reliable in its asserti on of illegality, not ju st in its tendency to identify a determinate person.” Id. at 272, 120 S. Ct. at 1379, 146 L. Ed. 2d at 261. Here, Officer Warner worked for a “street- level narcotics unit” that focused on the general area in which he stoppe d appellant. He had personall y made numerous arrests for narcotics within one-half block of that locati on, and he had had numerou s previous encounters with appellant, whom he described as “a known na rcotics dealer.” On the afternoon at issue, Officer Warner had received information from dispatch that two individuals were selling narcotics on “Addison Street at the bridge,” a particular dead-end st reet in his unit’s area. After finding no one on the designated street, he obser ved appellant and anot her man standing about six feet apart on the eight-foot -wide ramp to the nearby pedest rian bridge that crossed the Downtown Expressway. Both men “seemed to be in the same general area,” but “they weren’t communicating.” Appellant was holding an open container of alcohol, and the second man was urinating on the side of the ramp. Based on the drinking and urin ating in public (both misdemeanor offenses for which state law requi red release on a summons) and the suspicion of possible narcotics dealing, Officer Warner was ju stified in detaining appellant and the second man, Scott Pullen, to further inves tigate. When appellant placed his hand behind his back and reached toward his rear pocket or waistline ar ea, Officer Warner, whose backup officer had not yet arrived, was justified in handcuffing appellant, walking both men to his police vehicle, and- 5 - frisking them for weapons. Although the frisk of appellant revealed no weapons, drugs or other contraband, nothing in the record indicates the detention to that poi nt had lasted more than a few minutes, and Officer Warner was justified in briefly detaining appell ant further while he continued to investigate the dr ug distribution complaint. Base d on Officer Warner’s discovery on Pullen’s person of the folded lottery slip cont aining ashes and his memory of seeing a similar slip in the middle of the ramp to the pedestrian bridge where he had fi rst encountered the two men, Officer Warner was justifie d in having his backup officer c ontinue the detention of both men while he walked back to retrieve the lottery slip. Upon retrieving the lottery slip from the ground and discovering it contained crack cocaine and was folded in the same way as the lottery slip he had found on Pullen, Officer Warner may have had probable cause to arrest Pullen for possessing cocaine. Officer Warner may also have had reasonable suspicion to co ntinue his detention of appellant for further questioning about his involvement with Pullen a nd the cocaine in the folded lottery slip. However, the evidence, viewed in the light most favorable to the Commonwealth, was not sufficient to provide Officer Warn er with probable cause to arrest appellant for possessing the cocaine on the ground in the folded lottery slip. The evidence, viewed in the light most fa vorable to the Commonwealth, provided only a suspicion that appellant and Pullen were compan ions or had had any contact with each other when Officer Warner first encountered them on what amounted to a public sidewalk between 5:00 and 6:00 p.m. on a Tuesday afternoon in October, when it was still light outside. The pedestrian bridge was one block from the Greate r Richmond Transit bus terminal and adjacent to a Virginia Power building. The men were about si x feet apart on the eight -foot-wide ramp to the pedestrian bridge when Officer Warner approached, and Offi cer Warner testified they “seemed to be in the same general area” but “weren’t communicating.” Warner had only the information- 6 - from dispatch that a tipster reported two individuals of unknown description were selling narcotics on “Addison Street at the bridge,” which was near an area where Officer Warner had previously made several narco tics arrests. The record cont ained nothing indi cating the police had any knowledge regarding the identity of the ti pster, his reliability, or the source of his information, and the tip contained neither a desc ription of the alleged drug dealers nor any predictive elements allowing the pol ice to corroborate any of its content. Thus, the tip added little, if any, weight to th e probable cause analysis. Based on the tip and Officer Warner’s knowledge that appellant was a “known drug dealer” in an area known for narcotics sales, a ppellant’s presence on the ramp with Pullen, his furtive gestures during his encount er with Officer Warner, and the discovery of the cocaine in the folded lottery slip appearing to belong to Pu llen were certainly suspicious, but they were insufficient to provide probable cause for his arrest. Because Officer Warner did not see appellant discard anything, nothing but suspici on connected appellant to the cocaine in the lottery slip folded like the similar slip found in the frisk of Pullen. Probable cause “must be based on more than speculation, suspicion, or su rmise that a crime might be in progress.” Alexander v. Commonwealth , 19 Va. App. 671, 674, 454 S.E.2d 39, 41 (1995). Thus, the trial court’s ruling that the search of appellant wa s conducted pursuant to a va lid arrest for possessing cocaine was erroneous.
III. For these reasons, we hold the trial court’s denial of the motion to suppress was error. Accordingly, we reverse appe llant’s conviction and remand fo r further proceedings if the Commonwealth be so advised. Reversed and remanded.