COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Willis and Bumgardner 

Argued by teleconference 

COMMONWEALTH OF VIRGINIA 

 MEMORANDUM OPINION* BY 

v. Record No. 0254-98-3 JUDGE SAM W. COLEMAN III 

 JUNE 23, 1998 

MICHAEL (NMN) NORRIS, JR. 

 FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG 

Mosby G. Perrow, III, Judge 

 Steven A. Witmer, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellant. 

 Clinton R. Shaw, Jr. (Office of the Public 

Defender, on brief), for appellee. 

 Michael Norris, Jr. was indicted for possession of cocaine 

in violation of Code § 18.2-248. Following an evidentiary 

hearing, the trial court granted Norris' motion to suppress 

cocaine recovered by police after his arrest on the ground that 

police arrested him without probable cause. The Commonwealth 

appeals the trial court's ruling pursuant to Code § 19.2-398(2). 

 We hold that the trial court erred in granting the motion to 

suppress because the cocaine was discarded by Norris during his 

flight from police officers and was not seized pursuant to 

Norris' arrest. Accordingly, we reverse and remand. 

 Lynchburg Police Officer Brad Nesselroade and another 

officer responded to a police report "regarding a particular 

 

 *Pursuant to Code § 17-116.010 this opinion is not 

designated for publication. 
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suspect" at the 2100 block of Main Street in Lynchburg. When 

Nesselroade arrived at the scene, he saw Norris standing alone. 

Norris fit the description of the suspect in the police report. 

Upon seeing the officers approaching from their parked police 

cruiser, Norris turned and began to walk away. Nesselroade 

testified that Norris dropped a cellophane wrapper to the ground 

as he walked away. Nesselroade placed Norris in custody 

immediately upon seeing him drop the cellophane wrapper. After 

the arrest, Nesselroade retrieved the wrapper and found cocaine 

inside. 

 Nesselroade conceded that he did not know what was inside 

the cellophane wrapper when he arrested Norris. The officer 

explained that, based on his experience, he was aware that 

cellophane wrappers were often used to conceal drugs. 

Nesselroade further testified that he did not say anything to 

Norris until after Norris dropped the wrapper and that, in his 

"best estimation," he did not draw his service revolver while 

apprehending Norris. 

 A bystander testified that the two officers exited the 

police vehicle with their revolvers drawn, pointed them at 

Norris, and commanded Norris to "get down." He stated that in 

response to the officers' demands, Norris took "no more than two 

steps" and lay down on the pavement. The bystander did not see 

Norris discard the cellophane package. 

 The trial court granted Norris' motion to suppress the 
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cocaine. The court held that Nesselroade lacked probable cause 

to arrest Norris because at the time of the arrest the officer 

had not ascertained the contents of the cellophane wrapper. The 

Commonwealth appealed the trial court's ruling. 

 When the Commonwealth appeals a trial court's grant of a 

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

favorable to the defendant and grant it all reasonable inferences 

fairly deducible therefrom. See Commonwealth v. Grimstead, 12 

Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). We are bound by 

the trial court's findings of historical fact unless plainly 

wrong or without evidence to support it. Neal v. Commonwealth, 

27 Va. App. 233, 237, 498 S.E.2d 422, 424 (1998) (citing Ornelas 

v. United States, 517 U.S. 690, 691 (1996)). Also, we will 

uphold the trial court's suppression ruling unless it is plainly 

wrong or without evidence to support it. See Commonwealth v. 

Thomas, 23 Va. App. 598, 609, 478 S.E.2d 715, 720 (1996). 

 The trial court erred in ruling that the cocaine had to be 

suppressed because the arrest that followed after Norris 

discarded the drugs was illegal. When the Fourth Amendment is 

implicated, the exclusionary rule operates only to exclude 

evidence that is seized or discovered as a result of an illegal 

search or seizure. See Gilpin v. Commonwealth, 26 Va. App. 105, 

112-13, 493 S.E.2d 393, 397 (1997). A seizure occurs when an 

individual is either physically restrained or submits to a show 

of authority. California v. Hodari D., 499 U.S. 621, 625 (1991); 
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Ford v. City of Newport News, 23 Va. App. 137, 142, 474 S.E.2d 

848, 850 (1996). An individual who flees from police and does 

not submit to police authority is not "seized" under the Fourth 

Amendment. Hodari D., 499 U.S. at 623-24; Woodson v. 

Commonwealth, 245 Va. 401, 405, 429 S.E.2d 27, 29 (1993). 

Therefore, contraband abandoned during flight before an accused 

is physically restrained by police or submits to a show of police 

authority is admissible into evidence. Hodari D., 499 U.S. at 

624-25; Smith v. Commonwealth, 12 Va. App. 1100, 1104, 407 S.E.2d 

49, 52 (1991). 

 Here, the evidence clearly established that Norris abandoned 

the cocaine before the officer arrested him. Thus, the cocaine 

was not seized or discovered as a result of Norris' arrest, and 

the exclusionary rule does not require the suppression of the 

cocaine. See Hodari D., 499 U.S. at 625. 

 Norris contends on brief, and contended at the suppression 

hearing, that he was unlawfully seized before he discarded the 

cocaine. Norris argued that the evidence, viewed in the light 

most favorable to him, proved that the officers drew their 

weapons and ordered him to "get down" and that, in response to 

the officers' show of authority, he surrendered himself and 

relinquished the cocaine. 

 We do not consider Norris' argument in this appeal. The 

only issue before us is whether the trial court's suppression 

order, which was based on the court's ruling that Norris was 
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illegally arrested after the cocaine was discarded, was 

reversible error. In reaching its decision, the trial court did 

not make findings of historical fact or resolve the conflicts in 

the evidence as to whether the officers had drawn their weapons 

or whether an earlier seizure had occurred. Accordingly, because 

the trial court has not resolved the credibility or factual 

issues and has not ruled upon whether Norris was seized without 

probable cause prior to discarding the cocaine, we do not address 

that issue. 

 For the foregoing reasons, we reverse the trial court's 

suppression of the cocaine and remand the case for further 

proceedings in accordance with this opinion. 

 Reversed and remanded.