COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Decker and O’Brien Argued at Richmond, Virginia

JAZMINE N. KERSEY MEMORANDUM OPINION * BY v. Record No . 1324-16-2 JUDGE MARLA GRAFF DECKER AUGUST 29, 2017 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Steven C. McCallum, Judge Matthew T. Paulk (Law Office of Matthew T. Paulk , on brief), for appellant. David M. Uberman, Assistant A ttorney General (Mark R. Herring , Attorney General, on brief), for appellee.
Jazmine N. Kersey appeals he r conviction for possession of a c ontrolled substance in violation of Code § 18.2-250. She cont ends that the circuit co urt erred by ruling that the seizure and subsequent search of a folded dollar bill that she passed t o a companion were unreasonable under the Fourth Amendment of t he United States Constitution. We hold that the seizure of the bill was proper based on the companion’s consent. We further h old that the unusual way the bill was folded, combined with additional suspicious circumstances, provided probable cause to arrest the appellant and her companion for possession of contra band. The search of the dollar

* Pursuant to Code § 17.1-413, this op inion is not designated fo r publication.UNPUBLISHED- 2 - bill was reasonable as one incident to arrest for that offense. Consequently, we hold that the denial of the motion to suppress was not error, and we affirm the appellant’s conviction. 1
I. BACKGROUND 2 On March 4, 2015, the appellant vi sited the Chesterfield Count y Police Department to file a police report. She was accompanied by a male friend nam ed Tyson. 3 While she was there, Officer Christopher Naylor learne d that a capias for her arrestwas outstanding based on her failure to appear in court in a c ivil case. Naylor told the ap pellant that he ha d to “take her into custody” and “to jail.” The appe llant asked if she could make a telephone call first, and Naylor said that she could do so. While the appellant was making t he call, Naylor watched her rea ch into or beneath the fur coat she was wearing and pass so mething to Tyson. The appellan t passed the item in a fashion that exposed only the back of he r hand to Officer Naylor and pr evented him from seeing what she was holding. Additionally, she passed the item slowly and at “chest level.” Once Tyson took the object, Naylor could see that it was a “dollar bill” t hat was “folded on the sides [the]

1 The Commonwealth argues thatarresting the appellant on an out standing capias also supported the search. See State v. Hargis, 756 S.E.2d 529, 536 (Ga. 2014) (upholding the search of the defendant’s wallet, whi ch he left in his vehicle upon hi s arrest); Andrews v. State, 40 P.3d 708, 714-15 (Wyo. 2002) (upholding the se arch of the defendant’ s wallet, which he tried to leave in his home upon his arrest); 3 Wayne R. LaFave, Search and Sei zure § 5.5, at 283 n.1 (5th ed. 2012) (stating that “if the cont ainer was on the defendant’s pe rson at the time of arrest but he then removed it from his person and placed it nearby, the searc h of the container will still likely be treated as justified as part of the search of the person”). In light of our holding, we do not address this additional argu ment. See, e.g., Commonwealth v. White, 293 Va. ___, ___, 799 S.E.2d 494, 498 (2017).

2 In ruling on the propriety of acircuit court’s decision on a motion to suppress, the appellate court views the eviden ce in the light most favorable to the party who prevailed below, in this case the Commonwea lth. E.g., Beasley v. Commonwealth, 60 Va. App. 381, 385 n.1, 728 S.E.2d 499, 501 n.1 (2012).

3 Tyson’s surname does not appear in the record.- 3 - long way, not just in half,” and that it had additional folds. Tyson put the bill in between “some papers and binders” that he was holding. The appellant did not hand any other items to Tyson during that period of time. Officer Naylor asked the appellant what the item was, and she replied, “[J]ust a dollar.” The officer said that he “need ed to see” the dollar, and then h e “asked” Tyson “if” he could see it. Tyson handed the bill to Officer Naylor. Once he took it, the officer “noticed the way it was folded, specifically.” Naylo r believed, based on his training and experience during his four years on the police force, that the me thod of folding was consistent with the way that people “carry their drugs.” He indicated that he had personally seen “someon e carry their drugs in that fashion” on two or three prior occasions. Accord ing to Naylor, he then “open[ed]” the bill, found a white powder determined to be cocaine, and arrested the appellant and her companion for possession of a controlled substance. Prior to trial, the appellant f iled a motion to suppress the e vidence. She argued that Officer Naylor’s seizure and subs equent search of the dollar bi ll violated her Fourth Amendment rights. She contended that the w ay the dollar bill was folded, standing alone, did not provide probable cause to believe it co ntained contraband and that it w as not surprising to think that she would want to give her cash to her companion rather than have i t seized upon her arrest on the capias. She further argued that, absent either probable cause and exigent circumstances or a search warrant, the officer lack ed legal authority to search anitem that she chose to entrust to a third party at the time of her arrest. The Commonwealth responded that the totality of the circumstan ces provided the officer with probable cause to believe that the appellant was concealin g contraband. The prosecutor also argued that the appellant “divested [hersel f] of her inter est” in the dollar bill when she gave it to her friend and that the fr iend then made the decision to hand the item to the officer.- 4 - The circuit court denied the motion to suppress, providing a t wo-part rationale for doing so. First, it ruled that Tyson c onsented to the seizure of the dollar bill, recognizing that the record supported a finding that O fficer Naylor “asked the man i f he could see it” and “the man handed it over to the officer w ithout resistance or objection.” Second, the court ruled that the officer had probable cause to “sear ch” the dollar. It based th is ruling on the me thod of folding of the dollar, the officer’s knowledge of the significance of that folding, the surreptitious way that the appellant passed the bill to Tyson, and the manner in whichTyson concealed the bill among the items he was already holdi ng. The court described the way that the appellant held the bill while slowly passing it as “esse ntially ke[eping] her finger[s] straight, but with her thumb clasped against the palm [that ] was holding this dollar bill.” The court found it “very clear” that the appellant, who was in custody at the time, had engaged in “ an effort to conceal what she had.” Further, it point ed out that “under these circumstances, ” no exigency was required. After the court denied the a ppellant’s motion to suppress, she entered a conditional guilty plea to the charge of possessi on of a controlled substance. Af ter conviction, she was sentenced to serve ten years in prison, w ith nine years nine months suspe nded.
II. ANALYSIS The appellant argues that the circuit court erred in denying h er motion to suppress the cocaine found in the folded dollar bill. She contends that she had a reasonable expectation of privacy in the bill, which she did not forfeit by entrusting it to her friend, and that neither she nor her friend consented to Officer N aylor’s seizure and subsequent search of the bill. She also suggests that at the time of the search, the officer did not ha ve probable cause t o believe that the bill contained evidence of a crime and that, even if he did, he lacked the exigent circumstances necessary to search it without awarrant. The Commonwealth res ponds that the appellant relinquished her expectation of privacy in the bill by passing it to her friend and, accordingly,- 5 - that she lacked standing to contes t the seizure and search. Th e Commonwealth a lso argues, as the circuit court ru led, that the officer developed probable ca use to believe that the appellant and her companion were engaged i n a felony, providing the officer w ith probable cause to arrest them and to search the bill incident to arrest. A. Standard of Review When challenging the denial of a motion to suppress evidence, the appellant bears the burden of establishing that rev ersible error occurred. Glenn v . Commonwealth, 275 Va. 123, 130, 654 S.E.2d 910, 913 (2008). On appeal, the Court consider s the evidence in the light most favorable to the party who prevai led below and affords to that party, in this case the Commonwealth, the benefit of all inferences fairly deducible fr om that evidence. Mason v. Commonwealth, 291 Va. 362, 367, 786 S.E.2d 148, 151 (2016). The appellate court is bound by the circuit court’s “findings of historical fact unless ‘plainly wrong’ or without evid ence to support them.” McGee v. Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) ( en banc ). “This standard require s us ‘to give due weight to inferences drawn from those f acts by resident judges and loc al law enforcement officers.’” Commonwealth v. White, 293 Va. ___, ___, 799 S.E.2d 494, 495 (2 017) (quoting Evans v. Commonwealth, 290 Va. 277, 280, 776 S.E.2d 760, 761 (2015)). T he factual findings to which we defer include the circuit cour t’s assessment of the credibil ity of the witnesses. McCary v. Commonwealth, 36 Va. App. 27, 35, 548 S.E.2d 239, 243 (2001). They also include whether the police received consent for a se izure or search. Jean-Laurent v. Commonwealth, 34 Va. App. 74, 79, 538 S.E.2d 316, 318 (2000). However, the appellate court r eviews de novo both the issue of whether law enforcement had proba ble cause for a seizure or search and the overarching issue of whether the actions were r easonable. Glenn, 275 Va. at 130, 65 4 S.E.2d at 913; Bland v. Commonwealth, 66 Va. App. 405, 412, 785 S.E.2d 798, 801 (2016).- 6 - B. Expectation of Privac y in the Dollar Bill The “touchstone” of Fourth Amend ment analysis is “whether a pe rson has a ‘constitutionally protected reas onable expectation of privacy’” in the place or item seized or searched. Oliver v. United S tates, 466 U.S. 170, 177 (1984) (quoting Katz v. United States, 389 U.S. 347, 360 (1967) (Harlan, J., co ncurring)), quoted with app roval in Sanders v. Commonwealth, 64 Va. App. 734, 743, 772 S.E.2d 15, 19 (2015); s ee Minnesota v. Carter, 525 U.S. 83, 88 (1998) (recognizing this as a question of “substant ive Fourth Amendment law [rather] than . . . standing” ( quoting Rakas v. Illinois, 439 U .S. 128, 140 (1978))). The defendant bears the burden of proving such a n expectation of privacy if s he wishes to challenge the constitutionality of the ac tion. See, e.g., Bell v. Commonweal th, 264 Va. 172, 190, 563 S.E.2d 695, 708 (2002); Logan v. Commo nwealth, 47 Va. App. 168, 171 n. 2, 622 S.E.2d 771, 772 n.2 (2005) ( en banc ). This burden involves both subj ective and object ive componen ts. Sanders, 64 Va. App. at 744, 772 S.E.2d at 19-20. Additionally, the burdenis one of “persuasion,” not one of “mere . . . production.” Logan, 47 Va. App. at 171 n.2, 622 S.E.2d at 772 n.2. Consequently, it requires proof, “to the satisfa ction of the factfinder,” of the existence of facts upon which the necessary “legal conclusion can be drawn.” Id. To meet the first component, a de fendant must show “that [she] personally ha[d] an expectation of privacy in the [thing] searched.” Rideout v. Co mmonwealth, 62 Va. App. 779, 786, 753 S.E.2d 595, 599 (2014) (quoting C arter, 525 U.S. at 88 ). In evaluating this prong of the test, the Court must determine “whether the individual, by [her ] conduct has ‘exhibited an actual (subjective) expecta tion of privacy,’ [i.e.,] whether . . . the individual has shown that ‘[she] seeks to preserve [the thing] as private.’” Id. at 787, 753 S.E.2d a t 599 (citation omitted) (quoting Smith v. Maryland, 442 U.S. 735, 740 ( 1979)). This subjective determination is a finding of fact- 7 - entitled to defer ence on appeal. Johnson v. Commonwealth, 26 V a. App. 674, 684, 496 S.E.2d 143, 148 (1998). Here, the circuit court, in ruling on the motion to suppress o n probable cause grounds, made express factual findings rel evant to whether the appellant exhibited a subjective expectation of privacy in the dol lar bill and its contents. Th e judge found that the appellant, who was in custody on an outstanding cap ias and knew she was in cus tody, “reach[ed] into a pocket” and “remov[ed] something in a conc ealed way.” He further noted that she engaged in an “atypical[ly] . . . slow maneuver” to pass the item to her comp anion. The court described the way that the appellant held the item while passing it as “essen tially ke[eping] her finger[s] straight, but with her thumb clasped against the palm [of her h and that] was holding th[e item].” The judge further described the appellant’s method of passing the item as “surreptitious.” Additional evidence supports this finding. It shows that as a result of the surreptitious manner in which the appellant passed the i tem, the officer was unable to see it. Not until Tyson took possession of the item could the o fficer see that it was a fold ed dollar bill, and Tyson quickly slipped it between some pape rs he was holding, again obscuring it from view. Finally, when the officer asked the appellant about t he item, she attempted to mi nimize the likelihood that the officer would take any further i nterest in it by replying that it was “just a dollar.” Based on all the circumstances, the circuit c ourt found that the evidence wa s “very clear” that the appellant engaged in a focused “effort to c onceal what she had.” See Har dy v. Commonwealth, 17 Va. App. 677, 680-81, 440 S.E.2d 434, 436-37 (1994) (holding th at the defendant displayed a subjective intent to “ retain his privacy int erest” in the trunk of a borrowed vehicle by objecting to its search and directing his girl friend not to give the keys to the police). On this record, the court’s finding that the appellant attempted to “conceal” the b ill and its contents is not plainly- 8 - wrong. Consequently, the record sup ports the conclusion that the appellant maintained a subjective expectation of privac y in the contents of the bill. Second, to meet the objective comp onent of the expectation-of- privacy test, a defendant must establish that her expect ation “[was] objectively ‘reasonable’ based on ‘a source outside of the Fourth Amendment.’” S anders, 64 Va. App. at 744, 772 S.E.2 d at 20 (quoting Rideout, 62 Va. App. at 786, 753 S.E.2d at 599). The defendant may prove s uch an expectation by means of “either: (1) ‘“concepts of real or personal property law”’ or ( 2) ‘“understandings that are recognized and permitted by socie ty.”’” Id. (quoting United St ates v. Jones, 565 U.S. 400, 408 (2012)). “[This] guarantee protec ts alike the ‘traveler who carries a toothbrush and a few articles of clothing in a paper bag’ and ‘th e sophisticated executive wi th [a] locked attaché case.’” Smith v. Ohio, 494 U.S. 541, 542 (1990) ( per curiam ) (quoting United Sta tes v. Ross, 456 U.S. 798, 822 (1982)). In determining wheth er an expectation of privacy is objectively reasonable, a court looks to the totality of the cir cumstances. Atkins v. Commonwe alth, 57 Va. App. 2, 13, 698 S.E.2d 249, 254 (2010). Those circumst ances include whether th e defendant had “a possessory interest” in the item seized, w hether she had “the right to exc lude others,” whether she “exhibited a subjective expectation that it would remain free from governm ental invasion,” and whether she “took normal precautions to maint ain [her] privacy.” United St ates v. Haydel, 649 F.2d 1152, 1155 (5th Cir. 1981), quoted with app roval in McCoy v. Commonwe alth, 2 Va. App. 309, 312, 343 S.E.2d 383, 385 (1986). Whether the defendant had an objec tively reasonable expectation of privacy “based on a property inter est or other societal norm . . . is a legal determination that we review de novo .” Sanders, 64 Va. App. at 744, 772 S.E.2d at 20. Here, the appellant’s expect ation of privacy in the contents o f the folded dollar bill was based on her personal property interest. See, e.g., Jones, 565 U.S. at 406-08. The bill originated in her possession, first coming t o the officer’s attention when she removed it from her clothing- 9 - and passed it to her friend. Eve n after the officer searched the bill and found contraband inside it, the appellant maintained that the bill and its contents bel onged to her. See Atkins, 57 Va. App. at 13-14, 698 S.E.2d at 254-55 ( discussing the impact of the assertion or denial of a property interest). The fact that the folded dolla r bill was a non-traditional con tainer did not render an expectation of privacy in the bill objectively unreasonable. S ee Grandison v. Commonwealth, 274 Va. 316, 320-21, 645 S.E.2d 298, 300-01 (2007) (implicitly concluding that the defendant had a reasonable expectation of pr ivacy in the contents of a fo lded dollar bill by holding that his possession of the bill, which was a“legal [item] with a legiti mate purpose,” in a high crime area was not enough to provide probable cause to search inside the b ill); see also Smith, 494 U.S. at 541-42 (reasonable expectation of pr ivacy in a paper bag); Peop le v. Dumas, 955 P.2d 60, 64 (Colo. 1998) ( en banc ) (citing drugs “concealed in a folded dollar bill” as an examp le of how contraband can be hidden “‘in sma ll containers’” (quoting Peopl e v. Moore, 900 P.2d 66, 71 (Colo. 1995); and citing People v. Chaves, 855 P.2d 852, 853 (C olo. 1993))); State v. Dubose, 843 N.E.2d 1222, 1230-31 (Ohio Ct. App. 2005) (reasonable expec tation of privacy in “Scotchguard can” entrusted to another). See generally 4 Wayne R. LaFave, Search and Seizure § 8.6(a) (5th ed. 2012) (recognizing that the character of a co ntainer and whether it is locked or secured in some other fashion can be relevant to whether a bail ee may consent to its search). Additionally, the appellant did not forfeit her objectively re asonable expectation of privacy in the item “simply by entrusting [it] to the care of another.” 6 LaFave, supra, § 11.3(f), at 285-86 (quoting United S tates v. Most, 876 F.2d 191, 197 (D. C. Cir. 1989) (involving an entrustment to “store clerks”)); see Hardy, 17 Va. App. at 680- 82, 440 S.E.2d at 436-37 (recognizing that both the owner of a car and its bailee had a sufficient reasonable expectation of privacy in it to challenge its search); cf. Knight v. Commonwea lth, 61 Va. App. 297, 309 n.5,- 10 - 734 S.E.2d 716, 722 n.5 (2012) (noting in dicta that an owner generallyretains a reasonable expectation of privacy even in l ost property, subject to the fi nder’s examination of it to identify its owner). The evidence was uncont radicted that even after th e officer searched the bill, the appellant maintained that the bill and its contents were hers and that “her friend . . . had nothing to do with” the items. The appell ant did have a diminished exp ectation of privac y in the bill and its contents to the extent that she risked that her friend woul d consent to a search of the property or abandon it. See Glenn, 275 Va. at 132-33, 654 S.E.2d at 914 -15 (recognizing third-party consent); see also Unite d States v. Basinski, 226 F.3d 829, 838 (7th Cir. 2000) (recognizing third-party abandonment). Neverth eless, this risk did not cons titute a diminished expectation of privacy as against direct “intr usion” by “[the] government[],” and under the facts here, it did not deprive the appellant of “stan ding” to contest the officer’s se arch. See John L. Costello, Virginia Criminal Law and Procedure § 40.2 (4th ed. 2008) (emphasis omit ted) (relying in part on Rawlings v. Kentucky, 448 U.S. 98 (1980), and Mancusi v. DeFort e, 392 U.S. 364 (1968)); see also 6 LaFave, supra, at 285. Consequently, the record supports the circuit court’s implicit determination that the appellant had a subjective exp ectation of privacy in the folded dollar bill. It also supports our de

novo ruling that this expectation of privacy was one that society w as prepared to recognize as objectively reasonable. C. Examination of the Dollar Bill The circuit court found that the appellant’s friend consented to the officer’s seizure of the dollar bill. The evidence, viewe d under the proper standard, s upports that finding. Generally speaking, a search or seizure “authorized by consent is wholly valid.” Kyer v. Commonwealth, 45 Va. App. 473, 483, 612 S.E.2d 213, 218 (2005) ( en banc ) (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 222 (1973)); see Unite d States v. McFarley, 991 F.2d- 11 - 1188, 1191 (4th Cir. 1993). Consent t o search an item of perso nal property may be obtained from either the owner of the pr operty or “a th ird party who shares access to the . . . object being searched.” Glenn, 275 Va. at 130, 654 S.E.2d at 913. Addition ally, a nonverbal response to a specific request may constitute consent. See Hawkins v. Common wealth, 65 Va. App. 101, 108-09, 774 S.E.2d 492, 496 (2015). However, “mere acquiescenc e is not enough.” Jean-Laurent, 34 Va. App. at 78, 538 S.E.2d at 318. The presen ce of consent is a factual question to be determined by the trier of fact based on the tot ality of the circumstances, and such a finding may be reversed only i f it is plainly wrong. Hawkins , 65 Va. App. at 107, 774 S.E.2d
at 495. Here, the appellant passed the folded dollar bill to Tyson, wh o placed it among some papers he was holding. Officer Nay lor asked the appellant what the item was, and she responded that it was “just a dollar.” N aylor told the appellant that he “needed to see” the bill, language tending to indicate an order rather than a request. See, e.g., Jean-Laurent, 34 Va. App. at 79-80, 538 S.E.2d at 318-19. However, the officer then “ asked” Tyson, who possessed the bill, “ if [he] could see” it. (Emphases adde d). The appellant did not object to what was clearly a request made by the officer to Tyson. See Glenn, 275 Va. at 133-34, 65 4 S.E.2d at 915; see also White, 293 Va. at ___, 799 S.E.2d at 498 (“Either of two joint possess ors [of a plastic bag], absent the express objection of one of them , may consent to a search under Georgia v. Randolph, 547 U.S. 103, 109 (2006).”). Then Tyson, who ha d authority over the bil l by virtue of the fact that the appellant had just given him ex clusive physical possession of i t, consented to Naylor’s request to “see” the bill by handing it to the officer in the appellant’s presence. See, e.g., Glenn, 275 Va. at 130, 654 S.E.2d at 913; see also Uni ted States v. Sellers, 667 F.2d 1123, 1126 (4th Cir. 1981) (holding that where a defendant a sked friends to store his belo ngings, the friends could consent to a search of the items, which w ere “openly exposed” and “not[ ] locked”). This record supports- 12 - the circuit court’s factual fi nding that Tyson’s act of handing the dollar bill to Officer Naylor was more than acquiescence and am ounted to consent to the officer’s explicit request to seize the bill in order to “see” it. This reso lves the question of the lawful ness of the seizure of the bill. Officer Naylor, however, did not ask for consent to search the bill. He asked merely to

see it. Additionally, the circuit co urt, which resolved the issue of the reasonableness of the search by holding that it was supported by probable cause, did not find that Tyson’s consent permitted the officer to open the folded bill. See Knight, 61 Va. App. at 309, 734 S.E.2d at 722 (holding that an appellate court “will not apply the ‘right res ult, wrong reason’ doctrine ‘where . . . further factual re solution is needed’” (quoting Harris v. Commonwealth, 39 Va. App. 670, 676, 576 S.E.2d 228, 231 (2003 ( en banc ))). Assuming without deciding that Tyson did not consent to a search of the bill, this does not end the inquiry. We hold that the circuit court’s ruling that Officer Naylor had probable cause at the time of th e search to believe the dollar bill contained drugs rendered the sea rch lawful. The existence of p robable cause gave Officer Naylor authority to arrest the appellant and Tyson for possessi on of drugs, and as a result, he also had authority to search them and a ny containers within their re ach pursuant to that arrest. Probable cause exists when the facts and circumstances known to the officer “are sufficient to warrant a pers on of reasonable caution to believe that an offense has been or is being committed.” Al-Karri en v. Commonwealth, 38 Va. App. 35, 47, 561 S.E.2d 747, 753 (2002) (quoting Taylor v. Commonwealth, 222 Va. 816, 820, 284 S .E.2d 833, 836 (1981)). In conducting this assessment, “courts will focus [on] ‘what the t otality of the circumstances meant to police officer[s] trained i n analyzing the observed conduct for purposes of crime control.” Id. (quoting Taylor, 222 Va. at 820-21, 284 S.E.2d at 836). “At th e heart of all the definitions of probable cause is a reasonable ground for belief of guilt ‘part icularized with respect to the person [or thing] to be [searched]. ’” Doscoli v. Commonwealth, 66 Va. App. 419, 427, 786 S.E.2d 472,- 13 - 477 (2016) (quoting Maryland v. Pringle, 540 U.S. 366, 371 (200 3)). “Finely tuned standards” like proof beyond a reasonable doubt or by a preponderance, although “useful in formal trials, have no place in the [probable- cause] analysis.” Id. (alterati on in original) ( quoting Pringle, 540 U.S. at 371). The appellant correctly asserts that under Supreme Court of Vir ginia precedent, the method of folding of a dollar bill multiple times in “apothecar y style” or some other atypical way, combined with a defendant’s p resence in a high crime area and the knowledge of the investigating officer that peopl e sometimes carry drugs in sucha fashion, is insufficient to provide probable cause to believ e the bill contains drugs. Gra ndison, 274 Va. at 318, 320-21, 645 S.E.2d at 299-301; see Snell v. Commonwealth, 275 Va. 472, 472-73, 659 S.E.2d 510, 510-11 (2008) (applying Grandison) . In the appellant’s case, h owever, the evidence proved additional suspicious circumstan ces that, taken together with t he folded bill, support the circuit court’s conclusion that Officer Naylor had probable cause to ar rest the appellant and Tyson, thereby permitting a search of the bill incident to arrest. 4 Officer Naylor first became sus picious when the appellant, who knew she was being arrested on a capias and taken t o jail, surreptitiously passed to her friend an item that the officer could not see. The appellant kept her fingers extended with th e back of her hand facing Naylor and held only her thumb to her palm. Additionally, she moved h er hand slowly and at chest height, ostensibly while making a telephone call, all of which Naylor viewed as unusual and

4 Independent constitutional authority to search the dollar bill required not only probable cause but also exigent circumstances or a search warrant. See, e.g., Royal v. Commonwealth, 37 Va. App. 360, 365, 558 S.E.2d 549, 551 (2002). The officer did not have a search warrant, and the trial court did not find that exigent circumstances were pr esent. However, consistent with the circuit court’s ruling, probable cause to believe the dollar bi ll contained drugs also provided probable cause to arrest the appellant and Tyson. Probabl e cause to arrest in turn leg itimized the search of the dollar bill incid ent to their arrest without proo f of exigent circumstances. See, e.g., Buhrman v. Commonwealth, 275 Va. 501, 505, 659 S.E.2d 325, 327 (2008).- 14 - suspicious. See, e.g., Kidd v. C ommonwealth, 38 Va. App. 433, 443-44, 565 S.E.2d 337, 342 (2002) (noting that a series of ha nd-to-hand transactions in wh ich an officer cannot see what is exchanged may provide reasonable suspicion for detention and in vestigation). Further, once Tyson obtained possession of the item, Officer N aylor was briefly able to see that it was an atypically f olded “dollar bill.” Tyson thenimmediately took steps to conceal the bill again by placing it in t he middle of a group of papers and files he was holding. Finally, the appellant, who was wearing a f ur coat, did not give the coa t or any of her other possessions to Tyson during this period of time , belying the notion that her i ntention was to give him her valuables for safekeeping. This furtive behavior on the part of both the appellant and Ty son, at a time when the appellant knew she was going to j ail, combined with Officer Nay lor’s further examination of the bill with Tyson’s consent, provided the officer with probable c ause, based on his training and experience involving contraband carried in currency, to believe that the two were knowingly concealing drugs inside the bill. See In re J.D.R., 637 A.2d 8 49, 850-51 (D.C. 1994) (holding probable cause to arrest existe d where a police officer saw the corner of a plastic ziplock bag, which the officer knew was a type of bag commonly used as a con tainer for drugs, protruding from the defendant’s cast and the defendant tried to hide the b ag), cited with approval in Ross v. Commonwealth, 35 Va. App. 103, 108, 542 S.E.2d 819, 821 (2001); People v. McRay, 416 N.E.2d 1015, 1018-20 (N.Y. 1980) (recogni zing that a glassine e nvelope is a “‘telltale sign of heroin’” and that passing one in a“furtive or evasive” manner provides probable cause to arrest (quoting People v. Alexander, 333 N.E.2d 157, 158 (N.Y. 1975))) , cited with appr oval in Ross, 35 Va. App. at 108, 542 S.E.2d at 821; see also DePriest v. Com monwealth, 4 Va. App. 577, 585, 359 S.E.2d 540, 544 (1987) (holding that an officer’s obse rvation of hand-to-hand transactions provided reasonabl e suspicion but not probable cau se to arrest because the officer- 15 - “did not observe . . . the exchange of any object which in his experience suggest ed narcotics” and none of the “transactions observe d were furtive in nature”). Based on the existence of probabl e cause to arrest the appella nt and Tyson, it was entirely lawful for Officer Naylor to search them incident to arrest. S ee, e.g., Buhrman v. Commonwealth, 275 Va. 501, 505, 659 S.E.2d 325, 327 (2008). As long as probable cause exists to arrest a subject, the f act that the subject is search ed before the formal arrest does not violate the Fourth Amendment if “the formal arrest follow[s] qu ickly on the heels of the challenged search,” as it di d in this case. See Rawlings, 448 U.S. at 111, cited with approval in Wright v. Commonwealth, 222 Va. 188, 193, 278 S.E.2d 849, 852-5 3 (1981). Furthermore, the scope of a search incident to arrest includes not only the arre stee’s “person” but also “the area ‘within his [or her] immediate c ontrol,’” meaning “the area fro m within which [the arrestee] might gain possession of a weapon or de structible evidence.” C himel v. California, 395 U.S. 752, 763 (1969); see Commonwealth v. Gilmore, 27 Va. App. 320, 327-28, 498 S.E.2d 464, 468 (1998). The permissible scope als o includes containers found o n the arrestee’s person or within his or her immediate control as long as the search occurs suffi ciently contemporaneously. See Michigan v. Summers, 452 U .S. 692, 693, 705 (1981) (envelope); United States v. Robinson, 414 U.S. 218, 234-36 (1973) (pack age of cigarettes). In this case, these principles supported Officer Naylor’s searc h of the suspiciously folded and furtively handled dollar bill . Consequently, the evidence, viewed under the proper standard, supports the circuit court’s stat ed findings and rationale for denying the appellant’s motion to
suppress. III. CONCLUSION Tyson’s act of handing the dollar bill to Officer Naylor const ituted consent to the officer’s request to “see” the bill. The officer’s observation s of the appellant and her companion- 16 - as they surreptitious ly passed and hid the dollar bill, combine d with the officer’s knowledge about the possible significance of the atypical way the bill wa s folded, provided probable cause for an arrest of the appellant and her companion. Therefore, t he Fourth Amendment permitted a search of the folded dollar bill i ncident to those arrests. Th e circuit court did not err in denying the motion to suppress, and we affirm the appellant’s convictio n. Affirmed.- 17 - Humphreys, J., concurring in the judgment. The doctrine of judicial restraint requires that we decide case s “on the best and narrowest grounds available.” Air Courier Conference v. Am. Postal Worke rs Union, 498 U.S. 517, 531 (1991) (Stevens, J., concurring)) . As our Supreme Court noted in Commonwealth v. Swann, 290 Va. 194, 196-97, 776 S.E.2d 265, 267 (2015), a fundamental and longstanding corollary to this doctrine is that “unnecessary adjudication of a constitutional issue” should be avoided. Bell v. Commonwealth, 264 Va. 172, 203, 563 S.E.2d 695, 715 (2002); see also Christopher v. Harbury, 536 U.S. 403, 417 (2002) (noting the “ob ligation of the Judicia l Branch to avoid deciding constitutional issues needlessly”). While I find no fault with the F ourth Amendment analysis of th e majority, I see no need to engage in it because the reco rd in this case clearly reflect s that appellant f ailed in her burden to establish that her Fourth Ame ndment rights were implicated b y the seizure of the dollar bill from Tyson. As the majority correctly notes, t he protections of the Fourth Amendment are not vicarious and extend only to prev ent governmental intrusion int o an individual’s property interest or objectively reasonable expecta tion of privacy in the place s earched or the item seized. United States v. Jones, 565 U.S. 400, 408 (2012). On the record befor e us, the appellant has not demonstrated that either is the case. As the majority notes, the appe llant had no property interest i n the dollar bill at the time of the seizure sufficient to i mplicate the holding in Jones bec ause she had previously transferred it to Tyson and had objectively abandoned any prope rty interest in it. Similarly, despite appellant’s in-court asserti on of a property interest in the do llar bill, she stated no interest in it after she gave the bill to Tys on and failed to object or otherw ise declare any such interest at the time Tyson gave the bill to Officer Naylor.- 18 - Furthermore, an application of the Katz v. United States, 389 U .S. 347 (1967), “reasonable expectation of priv acy test,” also retained and inc orporated into the Supreme Court’s holding in Jones, does not yield adifferent result. Granting, as the majority doe s, that appellant had a subjective expectation of privacy in the item seized by O fficer Naylor from Tyson, that expectation of privacy was not objectively reasonable. The majority opinion correctly sta tes the test for determining whether a subjective expectation of privac y is objectively reasonable and includes w hether, based upon the totality of the circumstances, a defendant had a possessory interest in the place searched or item seized or whether “society [is] willing to recognize that [subjective] expectation as reasonable.” California v. Ciraolo, 476 U .S. 207, 211 (1986). The existence of these factors is, of course, measured at the time of the search or seizure. Here, at the time Officer Naylo r asked for and received the dol lar bill from Tyson, the appellant clearly had no possessoryinterest in the bill. More over, it is important to note that the item in question is one dollar in United States currency. In o ther words, the item “seized” in this case is a fungible unit of legal t ender that is routinely excha nged millions of times daily for goods, services, payment of debts, and even gifted between peop le on a routine basis. It seems to me axiomatic that once transferred from the possession of on e person to another, currency— whether in the form of paper or coins—are not items that the pu blic would generally consider to carry any objective expectation of privacy. Because I conclude that appella nt failed in her burden to estab lish that her Fourth Amendment rights were in any way implicated when appellant tran sferred the dollar bill, folded around a quantity of cocaine, to T yson who then transferred the bill to Officer Naylor, I see no need to address the constitutionality of the seizure and I woul d affirm on that narrower basis.