COURT OF APPEALS OF VIRGINIA
Present: Judges Pett y, Russell and AtLee Argued by teleconference

CANTON THOMAS JOHN JOHNSON MEMORANDUM OPINION * BY v. Record No. 0899-18-1 JUDGE RICHARD Y. ATLEE, JR. JUNE 11, 2019 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF CHESAPEAKE Frederick B. Lowe, Judge Designate 1 Robert L. Wegman (The Law Office of Robert L. Wegman, P.L.C., on brief), for appellant. Brittany A. Dunn-Pirio, Assistan t Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Canton Thomas John Johnson was convi cted, after a bench trial, of two counts of possession with the intent to di stribute in vio lation of Code § 18.2-248(A). 2 Johnson argues that his convictions should be revers ed for three reasons. First, h e argues that the trial court should have suppressed the evidence obt ained from his pockets because the search violated the Fourth Amendment. Second, he contends tha t the trial c ourt should hav e suppressed a statement he made because it was obtained in violation of his Miranda rights . Third, Johnson argues that the evidence at trial was insuffi cient to prove he intended to dist ribute the drugs in his possession. For the following reasons, we di sagree and affirm the circuit c ourt.

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.

1 Judge Lowe presided over the t rial and signed the final order. Judge J. Randall Smith ruled on the suppression issues.

2 One count related to the lysergi c acid diethlamide (“LSD”) in his possession, and the other count related to the methylenedioxyamphetamine (“MDA”) in his possession.UNPUBLISHED- 2 - I. B ACKGROUND “Under well-settled principles of appellate review, we consider the evidence presented at trial in the light most favorabl e to the Commonw ealth, the prev ailing party below.” Beck v. Commonwealth, 66 Va. App. 259, 262 (2016) (quoting Smallwood v. Commonwealth, 278 Va. 625, 629 (2009)). On December 9, 2016, Officer Souther of the Chesapeake Police D epartment pulled over a vehicle because it had a broken brake light on the passenger side. Johnson was the driver and sole occupant. As Officer Southe r approached the vehicle to as k for Johnson’s license and registration, she smelled burnt m arijuana emanating from the ve hicle. She asked Johnson to step out of the vehicle so she coul d search it. Although Johnson wa s upset and argued with Officer Souther, he ultimately complied and went to stand at the curb b ehind his car where a second officer was waiting. During the search of the car, Offi cer Souther discovered a clea r plastic baggy on the back seat. The baggy contained a white g ranulated substance, which Officer Souther believed was a narcotic, though she later testifi ed that she was not certain w hich narcotic. Officer Souther also discovered a small amount of flake s, which from her training an d experience she believed was marijuana, inside the center console. After completing the search of t he interior of the car, Officer Souther asked Johnson how to open the trunk, and he explained that it required the car ke y. Johnson reached into his pocket and pulled out the key. When he did so, Officer Souther notice d clear plastic baggies sticking out of his pocket. Johnson quickl y stuffed his hand back into his pocket and concealed the baggies. Officer Souther asked Johnson t o put his hands on his head and asked him what was in the plastic baggies in his pocke t. Johnson denied that he had anything in his pocket and refused- 3 - to put his hands above his head. O fficer Souther handcuffed Jo hnson and explained to him that he was being detained because he was uncooperative, but that he was not under arrest. After handcuffing him, Officer S outher reached into Johnson’s p ocket and pulled out six plastic baggies: four baggies co ntained a white granulated sub stance like that found in the back seat of the car, one baggy containe d four capsules filled with the same granulated substance, and one baggy contained nine individually wrapped pieces of foil. Officer Souther asked what the substances in the baggies were , and Johnson did not answer her question. Johnson continued to talk while O fficer Souther searched him. He repeatedly stated that he was going to jail and that he had nothing in his pockets. O fficer Souther again explained that he was only being detained and t hat she had seen something in h is pocket. Johnson said that he could not believe the police we re going through h is pockets. O fficer Souther responded, “What did I just say? I just aske d you what the plastic baggies in y our pocket were.” Johnson again denied that she ha d seen anything in his pocket. He continued to mutter about how he was trying to do bett er in life and how he tried t o get a new job. During his rambling, and approximately thirt y seconds after Officer Southe r’s last question, Johnson stated, “I have to try and sell some drugs and make a fucking living an d not die.” Officer Souther quickly concl uded her search and read Johnson h is Miranda rights. She proceeded to question him about the substances in the baggies. Johnson told her that they were
MDMA 3 and LSD. Johnson also denied selling drugs, and he explained away his prior statement as him “just saying shit.” Johnson was charged with two count s of possession with intent t o distribute. He filed a pretrial motion to suppress both t he drugs discovered in his po cket and his statement about

3 The certificate of analysis late r revealed that the suspected MDMA was actually MDA, a drug closely related to MDMA.- 4 - selling drugs. He argued that Officer Souther seeing a plastic bag did not provide probable cause for her to search his pocket. He also argued that since she di d not intend to arrest him prior to searching his pockets, the search was not justified as a search incident to arr est. Finally, he argued that his statement about selling drugs was the product o f custodial interrogation and that he had not yet been read his Miranda rights. At the hearing, Officer Souther testified about the incident, and the body camera recording of the incident was pl ayed for the trial court. Offi cer Souther explained on direct examination that if she had not s earched his pockets, she still would have arrested Johnson for possession based on the baggy in the car that she thought conta ined narcotics. On cross-examination, however, she admitted that she could not def initively say whether she intended to arrest him at that point because she did not know w hat the substance was. On re-direct, she testified that she believed it was a narcotic, and though she would have tried to identify the narcotic first, s he would have arrested him for be ing in possession of a narcotic. The trial court denied the motion on both grounds. It conclude d that Officer Souther had probable cause to arrest Johns on for possession of a narcotic a nd that the search of his pockets was justified as a search incid ent to arrest. The trial court also determined that Johnson was not in custody at the time he made his statement and, even if he wa s, his statement was spontaneous and was not in response to a question. The case proceeded to trial. Johnson made a motion to strike a t the conclusion of the Commonwealth’s evidence, arguing the evidence was insufficient to prove intent to distribute. The trial court denied the motion. Johnson presented testimony from De tective Higazi from the Ches apeake Police Department. Detective Higazi tes tified that the evidence was c onsistent with personal use of the LSD regardless of the statement Johnson made. He also stated that the evidence was consistent- 5 - with personal use of the MDA if he did not consider Johnson’s s tatement about selling drugs. On cross-examination, however, whe n he heard the whole statemen t, he reconsidered, saying, “Then I would say that would be c onsistent with d istribution.” After Johnson testified, he renew ed his motion to strike, which the trial court denied. The trial court convicted John son of both counts of possession with intent to distribute. 4 This appeal followed.
II. A NALYSIS A. Motion to Suppress 1. Standard of Review In reviewing the denial of a motion to suppress, “we determine whether the accused has met his burden to show that the tr ial court’s ruling, when the evidence is viewed in the light most favorable to the Commonwealth, was reversible error.” Roberts v. Commonwealth, 55 Va. App. 146, 150 (2009). We are bound by the tri al court’s findings of fact unless plainly wrong or without evidence to support them , but we review “the trial court’s application of legal standards to the particular f acts of the case de novo .” Smith v. Commonwealth, 65 Va. App. 288, 295-96 (2015). 2. Probable Cause to Search Johnson’s Pocket Johnson argues that Officer Sout her did not have pr obable cause to search his pockets, and, therefore, the trial court should have suppressed the drug s discovered in his pockets.

4 There was some discrepancy at the sentencing hearing as to whe ther Johnson was convicted of two counts of possessi on or two counts of possessi on with the intent to distribute. The sentencing order reflecte d possession, but the presentence report stated that it was possession with the intent to di stribute. Both parties agreed that the correct convictions were possession with the intent to di stribute. The trial court note d that it neede d to correct the conviction order to reflect the proper offense. No corrected o rder was ever entered, and the sentencing order reflects the same incorrect convictions.- 6 - Under the Fourth Amendment, “[i ]f an officer has probable cause to believe that an individual has committed even a very minor criminal offense in his presence, he may, without violating the Fourth Amendment , arrest the offender.” Joyce v. Commonwealth, 56 Va. App. 646, 658 (2010) (quoting Atwater v. Lago Vista, 532 U.S. 318, 3 54 (2001)). “Once ‘probable cause exists to arrest a person, a constitutionally permissible search of the person incident to arrest may be conducted by an officer either before or after the arrest if the search is contemporaneous with the arres t.’” Slayton v. Commonwealth, 41 Va. App. 101, 108 (2003) (quoting Italiano v. Commonwealth, 214 Va. 334, 336 (1973)). “[P]robable cause exists when t he facts and circumstances withi n the officer’s knowledge . . . alone are sufficient to wa rrant a person of reasonable ca ution to believe that an offense has been or is being committed.” McGhee v. Commonwealth, 280 Va. 6 20, 624 (2010) (quoting Jones v. Commonwealth, 279 Va. 52, 59 (2010)). “Courts employ a ‘common sense approach’ not a ‘hypertechnical, rigid, and l egalistic analysis’ when rev iewing probable cause determinations.” Powell v. Commonwealth, 57 Va. App. 329, 335 (2010) (quoting Derr v. Commonwealth, 242 Va. 413, 421 (1991)). “ [P]robable cause ‘requires only a probability or substantial chance of crimina l activity, not an actual showing of such activity.’” Id. at 336 (quoting Illinois v. Gates, 462 U.S. 213, 245 n.13 (1983)). Thus, “it is not necessary for the facts to be ‘sufficient to convict’ the accused of the offense.” Sla yton, 41 Va. App. at 107 (quoting Gomez v. Atkins, 296 F.3d 253, 262 (2002)). Code § 18.2-250 makes it unlawful to possess a controlled subs tance. “[I]f an officer smells the odor of marijuana in c ircumstances where the officer can localize its source to a person, the officer has probable cause to believe that the pers on has committed or is committing the crime of possession of mar ijuana.” Bunch v. Commonwealth, 51 Va. App. 491, 496 (2008) (quoting United States v . Humphries, 372 F.3d 653, 660 (4th Cir . 2004)). Officer Souther- 7 - smelled burnt marijuana emanating from the car. Johnson was th e only person in the car. Furthermore, when Officer Southe r searched the vehicle—a searchthat Johnson concedes was supported by probable cause—she f ound flakes that she suspected were marijuana in the center console. 5 Johnson argues that the Commonw ealth cannot “bootstrap a proba ble cause justification” because Officer Souther did not intend to arrest Johnson prior to finding the drugs in his pocket. But probable cause depends only on “‘objective facts,’ not the ‘subjective opinion’ of a police officer.” Slayton, 41 Va. App. at 109 (quoting Golden v. Commo nwealth, 30 Va. App. 618, 625 (1999)). “[T]he fact that the o fficer does not have the state of mind which is hypothecated by the reasons which provide the legal justification for the officer’s action does not inva lidate the action taken as long as the circumst ances, viewed objectively, justify that action.” Id. (quoting Whren v. United States, 517 U.S. 806, 813 (1996)). Because the objec tive facts establish that Officer Souther had probable cause t o arrest Johnson for possession of marijuana, she had the authority to search him incident to arrest, r egardless of whether she act ually intended to arrest him. 3. Miranda Rights Johnson argues his statement about selling drugs should have be en suppressed because he was subject to custodial inte rrogation, without being informed of his Miranda ri ghts, at the time he made the statement. “[T]he United States Supreme C ourt has long recognized that Mir anda warnings are implicated only during a custodi al interrogation.” Aldridge v. Commonwealth, 44 Va. App. 618, 641 (2004). “Thus, the safeguard s, now commonly known as ‘Mira nda warnings’ are only

5 Although the odor of marijuana and t he suspected flakes of mar ijuana in the console were sufficient to provide Offi cer Souther with probable cause to arrest Johnson, we note that she also found a baggy containing awhite granulated substance that she reasonably believed to be a narcotic.- 8 - required when a suspect is both ( 1) in custody and (2) subjecte d to interrogation; the warnings are not required where an indivi dual is simply in custody.” Sm ith, 65 Va. App. at 296. “Even when otherwise applicable, M iranda bars from evidence onl y a suspect’s responses to police interrogation and has no impact on a suspect’s volunteered statements.” Tiz on v. Commonwealth, 60 Va. App. 1, 20 (2012) (quoting Testa v. Common wealth, 55 Va. App. 275, 283 (2009)). “[V]olunteered sta tements of any kind are not bar red by the Fifth Amendment and are not considered the product of an interrogation.” Smith, 65 Va. App. at 296-97. “If a suspect’s statement was not for eseeable, then it is volunteered .” Blain v. Commonwealth, 7 Va. App. 10, 15 (1988). This requires determining “whether an objective observer would view an officer’s words or actions as designed to elicit an incrimin ating response.” Id. Johnson argued on brief that he w as both in custody and subjec t to interrogation. During oral argument, however, Johnson’ s counsel conceded that Johnson ’s statement was not the product of interrogation, say ing, “I’m not gonna lose all credi bility and tell you that I think there was an interrogation. I think it was uh perhaps a spontaneous statement.” Because we agree with Johnson’s concession, we nee d not determine whether Johnso n was in custody. Johnson did not make the statement in response to any question ing by police. The statement in question came appr oximately thirty seconds after O fficer Souther asked a question. During that thirty seconds, J ohnson rambled about how his life was over and he had tried to do better. It was after this ram bling that he voluntarily stated that he had to sell drugs to make a living. This statement was not a foreseeable result of any que stion or action by Officer Souther. Nor could it be considered respons ive to the last question aske d. When a defendant voluntarily mak es a statement, an officer is not required to ignore what he or she is hearing. Gates v. Commonwealth, 30 Va. App. 352, 357 (1999). “‘Voluntary confessions,’ after all, ‘are notmerely a proper element in la w enforcement, they are an- 9 - unmitigated good, essential to society’s compelling interest in finding, convicting, and punishing those who violate the law.’” Tizon, 60 Va. App. at 19 (quoting Howes v. Fields, 565 U.S. 499, 514 (2012)). Because the statement was voluntary, it does not fall within the purview of Miranda, and the trial court di d not err in denying the motion to suppress. B. Sufficiency Johnson argues that the eviden ce was insufficient to support hi s convictions because the Commonwealth did not p rove he intended to distribute the drugs. 6 We disagree. “When reviewing the sufficienc y of the evidenc e to support a c onviction, the Court will affirm the judgment unless the judgment is plainly wrong or without evidence to support it.” Bolden v. Commonwealth, 275 Va. 144, 148 (2008). We view the e vidence in the light most favorable to the Commonwealth, a nd in so doing, “we must discar d the evidence of the accused in conflict with that of the Commonwealth . . . .” Scott v. Co mmonwealth, 55 Va. App. 166, 172 (2009) ( en banc ). Code § 18.2-248(A) provides that, “ it shall be unlawful for an y person to . . . possess with intent to . . . distribute a c ontrolled substance . . . .” A v iolation occurs when an individual possesses “the controlled substan ce contemporaneously with his intention to distribute that substance.” Christia n v. Commonwealth, 33 Va. App. 704, 716 (2 000) ( en banc ) (quoting Stanley v. Commonwealth, 12 Va. App. 867, 869 (1991) ( en banc )). A defendant’s admission may be use d as direct evidence to esta blish intent to distribute. Holloway v. Commonwealth, 57 Va. App. 658, 666 (2011) ( en banc ). Absent an admission, or

6 On brief, Johnson argues that eve n if the evidence showed poss ession with the intent to distribute, it was only as an accommodation under Code § 18.2-2 48(D). “[A] specific argument must be made to the trial court at the appropriate time, or the allegation of error will not be considered on appeal.” Edwa rds v. Commonwealth, 41 Va. App. 75 2, 760 (2003) ( en banc ); see also Rule 5A:18. Johnson did not rai se accommodation as a defe nse (or mention it at all) in the trial court below. Consequently, we will not now consider it o n appeal.- 10 - to supplement an admission, int ent to distribute may be proved by circumstantial evidence. Id. Virginia courts look at a numbe r of factors, such as packaging and quantity of the drugs, to determine whether an intent t o distribute existed. “The quantum of evidence necessary to prove an intent to distribute depends on the facts and circumstances of each case.” Scott, 55 Va. App. at 173 (quoting Askew v. Co mmonwealth, 40 Va. App. 104, 110 (20 03)). Here, we have direct eviden ce that Johnson intended to distrib ute the drugs. Johnson admitted to selling the drugs for pecuniary gain when he told O fficer Souther, “I have to try to sell some drugs and make a fucking living and not die.” The of ficers discovered two different types of drugs, which were di vided into small amounts and separ ately packaged. Johnson’s expert provided additi onal evidence of intent to dis tribute. Though the expert “teeter[ed] on the line” betwee n distribution and personal use based on the weight of the MDA alone, other factors were consis tent with distribution. The expert testified that the packaging of the drugs was consistent with di stribution; the drugs were indi vidually packaged in separate baggies each containing a small amount. Moreover, when the exp ert heard Johnson’s statement, he ultimately concluded that t he facts “would be consistent wit h distribution.” It is reasonable to infer he was referring to both the LSD and the MDA. Johnson argues that the Commonw ealth did not consider his subs equent statement denying that he intended to dist ribute the drugs. He also argu es that his admission could have applied to only one or none of the drugs. Further, Johnson arg ues that his expert stated that the possession of LSD was consistent with personal use regardless o f his statement about selling drugs. 7 But these arguments ignore th e prism through which we must vi ew the evidence on

7 In addition to ignoring the standard of review, this argument takes Detective Higazi’s testimony out of context. He note d that he could not really he ar the statement in the body camera recording, and the report he was provided said the state ment was referring specifically to MDA. When he heard the entiret y of the statement on cross-exam ination, he appeared to change his opinion and conclude that the evidence was consistent with distribution.- 11 - appeal. We must view the evidenc e in favor of t he Commonwealthand discard any evidence that conflicts with the Commonw ealth’s evidence. See Scott, 55 Va. App. at 172. Given the direct evidence of Johnson’s admission and the circu mstantial evidence of the packaging, the evidence was suffi cient to establish that Johnso n intended to distribute the drugs.
III. C ONCLUSION For the foregoing reasons, we affirm the decision of the trial court. We remand, however, for the trial court to enter an order correcting the c onviction and sentencing orders to accurately reflect the offenses for which Johnson was convicted

. Affirmed and remanded.