A Rehearing En Banc was granted in this case on August 14, 1995. 

COURT OF APPEALS OF VIRGINIA 

Present: Judges Coleman, Elder and Senior Judge Cole 

Argued at Richmond, Virginia 

HERBERT LEE EVANS 

 MEMORANDUM OPINION* BY 

v. Record No. 0577-94-2 JUDGE LARRY G. ELDER 

 JUNE 27, 1995 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Thomas N. Nance, Judge 

 David R. Lett for appellant. 

 Robert B. Condon, Assistant Attorney General 

 (James S. Gilmore, III, Attorney General, on 

 brief), for appellee. 

 Herbert Lee Evans (appellant) appeals his conviction for 

possession of cocaine. Appellant's sole contention is that the 

cocaine seized by the police should have been suppressed because 

the officer seized it in violation of appellant's fourth 

amendment rights. Upon review, we hold that the trial court 

erred in ruling that the search and seizure were lawful and in 

admitting the illegally seized cocaine into evidence. Because 

the cocaine evidence was indispensable to prove the 

Commonwealth's case, we reverse the conviction and dismiss the 

indictment. 

 On the night of October 20, 1993, while patrolling a high 

 

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

designated for publication. 
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drug area of Richmond, Officer Michael Talbert observed appellant 

standing in the middle of the street with another individual. 

Appellant and the person made a hand-to-hand exchange, but 

Talbert could not see what had been exchanged. Appellant 

appeared to notice the police car coming towards him, and he 

immediately approached a vehicle that was parked with its engine 

running. Appellant, who had a small black leather pouch in his 

left hand and a pager in his right hand, placed his left hand 

inside the open window of the vehicle. When appellant removed 

his hand, he was no longer holding the pouch. Appellant 

transferred the pager from his right hand to his left hand. 

 Talbert testified that, based upon his experience and 

training in narcotics detection and his observation of all of the 

circumstances, he believed appellant had engaged in a drug 

transaction. Talbert approached the vehicle, shined his 

flashlight inside, saw a pouch, reached inside, and retrieved the 

pouch from the floorboard behind the driver's seat. Talbert 

could not see inside the pouch without picking it up. When he 

shined his flashlight into the pouch, Talbert saw that it 

contained bags of a substance that he suspected was cocaine. 

Talbert arrested appellant for possession of cocaine. When the 

police searched the vehicle incident to appellant's arrest, they 

found in the trunk crack cocaine hidden inside a candy container 

in a leather jacket. 

 At a bench trial, appellant was convicted of possession of 
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cocaine. 

 In determining whether Talbert had probable cause to seize 

the pouch without a warrant, we are guided by certain principles. 

 The test of the constitutional validity of a warrantless search 

"'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.'" 

Hardy v. Commonwealth, 11 Va. App. 433, 434, 399 S.E.2d 27, 28 

(1990) (quoting DePriest v. Commonwealth, 4 Va. App. 577, 583-84, 

359 S.E.2d 540, 543 (1987), cert. denied, 488 U.S. 985 (1988)). 

 Furthermore, although we are required to "test what the totality 

of the circumstances meant to police officers trained in 

analyzing the observed conduct for purposes of crime control," we 

must consider that "the probable-cause determination must be 

based on objective facts that could justify the issuance of a 

warrant by a magistrate." Buck v. Commonwealth, 20 Va. App. 298, 

__, 456 S.E.2d 534, __ (1995) (quoting Derr v. Commonwealth, 6 

Va. App. 215, 219-20, 368 S.E.2d 916, 918 (1988)) (other 

citations omitted). See also DePriest, 4 Va. App. at 584, 359 

S.E.2d at 543 ("[I]n assessing an officer's probable cause for 

making a warrantless arrest [or seizure and search], no less 

strict standards may be applied than are applicable to a 

magistrate's determination that [a] . . . warrant should issue.") 

(citing Washington v. Commonwealth, 219 Va. 857, 862, 252 S.E.2d 

326, 329 (1979)). 
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 The Commonwealth claims that Talbert had probable cause to 

seize the pouch and search its contents because (1) he observed 

hand-to-hand contact between appellant and a third party; (2) the 

exchange occurred in a high drug area; (3) appellant and the 

third party quickly parted after seeing the police; (4) appellant 

placed the pouch in a vehicle and distanced himself from the 

vehicle; (5) appellant possessed a pager; and (6) Talbert's 

experience and training in narcotics detection allowed him to 

conclude he witnessed a drug transaction. 

 A complete review of the record shows that "[a]t most, the 

facts raised a suspicion that criminal activity was afoot; the 

facts did not provide [Talbert] with probable cause to believe 

that the appellant had or was committing a crime." Buck, 20 Va. 

App. at __, 456 S.E.2d at __ (quoting DePriest, 4 Va. App. at 

584-85, 359 S.E.2d at 544). The behavior Talbert observed could 

have been equally indicative of lawful activity, especially in 

light of the fact that he did not see what was being exchanged by 

the parties. 

 This Court held in DePriest that the arresting officer's 

observations did not establish probable cause to arrest the 

appellant for selling narcotics. In DePriest, the officer 

observed the appellant over a three and a half hour period 

engaging in hand-to-hand contact with multiple people and 

exchanging money and other objects with multiple people. We held 

that "while the events observed by [the officer] were suspicious 
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they did not alone, establish probable cause," but a mere 

reasonable suspicion of criminal activity. DePriest, 4 Va. App. 

at 584-85, 359 S.E.2d at 543-44. We also reiterated that "'a 

sequence of events which is typical of a common form of narcotics 

transaction may create a suspicion in a police officer's mind, 

but probable cause, of course, requires more than mere 

suspicion.'" DePriest, 4 Va. App at 585, 359 S.E.2d at 543-44 

(quoting United States v. Green, 670 F.2d 1148, 1151 (D.C. Cir. 

1981)) (emphasis added). 

 Other decisions from this Court are instructive in reaching 

our conclusion. In Smith v. Commonwealth, 12 Va. App. 1100, 407 

S.E.2d 49 (1991), the arresting officer saw the appellant at 

night in a playground in a drug area and saw him quickly move to 

put his hand into his pants when the officer's marked car came 

into view. However, the officer observed no other behavior that 

would have indicated that the appellant was involved in criminal 

activity. This Court held that these facts did not provide 

sufficient cause to even detain the appellant for an 

investigatory stop, which requires a mere reasonable, articulable 

suspicion of criminal activity (a more lenient standard than 

probable cause). 

 In Commonwealth v. Grimstead, 12 Va. App. 1066, 407 S.E.2d 

47 (1991), the arresting officer stopped the appellant's car in 

the early morning hours for speeding and saw a hemostat in the 

vehicle's ashtray. The officer removed the hemostat to examine 
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it, observed what he thought were traces of marijuana, and 

arrested the appellant. We held that on this evidence, "the 

officer did not have probable cause to seize the hemostat as 

evidence of a crime . . ." as the hemostat's presence could only 

have justified a suspicion of criminality. 12 Va. App. at 1070, 

407 S.E.2d at 49. 

 As the dissent recognizes, this case offers some indicia 

that appellant possessed cocaine. However, "[a]t most, the facts 

raised a suspicion that criminal activity was afoot; the facts 

did not provide [Talbert] with probable cause to believe that the 

appellant had or was committing a crime." Buck, 20 Va. App. at 

__, 456 S.E.2d at __. Consequently Talbert lacked probable cause 

to seize and search the pouch or arrest appellant. This case is 

unlike Commonwealth v. Ramey, 19 Va. App. 300, 450 S.E.2d 775 

(1994), where the arresting officer viewed a plastic bottle 

resembling a "bong" partially protruding from the pack the 

appellant wore at his waist. While issuing a traffic summons to 

the driver of the vehicle in which the appellant was a passenger, 

the officer seized the device and arrested the appellant for 

possession of cocaine. We held that "[b]ecause of the 

distinctive character of the plastic bottle with foil on top and 

the highly unlikely event that it would have a legitimate use, 

the officer had probable cause to believe that the 'homemade 

bong'" might be useful as evidence of a crime. Id. at 305, 450 

S.E.2d at 777. 
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 Accordingly, the seizure of the pouch and its subsequent 

search were illegal. We therefore reverse the conviction and 

dismiss the indictment. 

Reversed and dismissed.
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Cole, S. J., dissenting. 

 I respectfully disagree with the majority's decision to 

suppress the evidence of cocaine. I agree with the trial court 

that the police officers had probable cause to seize it. 

 In reviewing a trial court's denial of a motion to suppress, 

"the burden is upon [the appellant] to show that this ruling, 

when the evidence is considered most favorably to the 

Commonwealth, constituted reversible error." Fore v. 

Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert. 

denied, 449 U.S. 1017 (1980). 

 The only issue in this case is whether the police officers 

had probable cause to seize from the appellant's car a black 

leather pouch containing cocaine. Admittedly, it is difficult to 

define probable cause. Professor Bacigal has described probable 

cause in this manner: 

 The law is clear as to what is not 

probable cause. It is not proof beyond a 

reasonable doubt; it is not a prima facie 

showing; it is not bare suspicion. The law 

is less clear as to what is probable cause. 

As the name implies, probable cause deals 

with probabilities, but the courts have not 

held that it means more probable than not. 

 . . . 

 The courts recognize that probable cause 

involves the factual and practical 

considerations of everyday life. Probable 

cause is established when the totality of the 

circumstances warrant a person of reasonable 

caution in the belief that seizable items are 
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located in the area to be searched. The 

required degree of probability is therefore 

expressed as a "reasonable belief" and not in 

terms of any mathematical precision. The 

distinction between "reasonable belief" and 

"bare suspicion" remains elusive and can only 

be determined by focusing on the precise 

facts of individual cases. 

Ronald J. Bacigal, Virginia Criminal Procedure § 4-7 (3d ed. 

1994). See also Brinegar v. United States, 338 U.S. 160 (1949); 

Saunders v. Commonwealth, 218 Va. 294, 237 S.E.2d 150 (1977). 

 The United States Supreme Court has frequently 

remarked that probable cause is a flexible, 

common-sense standard. It merely requires 

that the facts available to the officer would 

"warrant a man of reasonable caution in the 

belief" that certain items may be contraband 

or stolen property or useful as evidence of a 

crime; it does not demand any showing that 

such a belief be correct or more likely true 

than false. A "practical, nontechnical" 

probability that incriminating evidence is 

involved is all that is required. 

Texas v. Brown, 460 U.S. 730, 742 (1983) (citations omitted). 

Accord Delong v. Commonwealth, 234 Va. 357, 366, 362 S.E.2d 669, 
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673 (1987), cert. denied, 485 U.S. 929 (1988) (using identical 

language to define probable cause). 

 I shall focus upon the facts and circumstances of this 

particular case to determine whether the police officer at the 

time he made the decision to seize the pouch had probable cause 

to believe that contraband was located in the area to be 

searched. The only witness to the facts was Michael R. Talbert 

of the Richmond Police Department. He is a veteran police 

officer with eight years of experience, six and half of which 

were spent investigating narcotics crimes. He had received 

classes in narcotics and surveillance techniques. He had 

performed well over two hundred surveillances and was the primary 

arresting officer of over five hundred persons on narcotics 

offenses. He had been involved with investigating both selling 

and buying drugs on the streets. 

 On the night in question Talbert and two other officers were 

on patrol in a "high drug area." Talbert himself had made a 

number of arrests in the area on previous occasions. As he 

turned onto Walcott Place, he observed the appellant and another 

individual standing in the middle of the street having hand-tohand contact. He testified that what he observed was more than a 

handshake and that something had been exchanged, but he did not 

know what it was. Talbert stated that if this was all he 

observed, he would not have stopped his vehicle. 

 In addition, he observed that when the police car turned the 
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corner, the defendant and the other individual turned and looked 

in their direction. Immediately, the two men split up. The 

other individual went to Talbert's left and appellant went in the 

opposite direction towards a vehicle that was parked on the 

street. 

 Talbert observed that appellant had a pager in his right 

hand and a black leather pouch in his left hand. Talbert 

explained that a pager is typically used in drug transactions. 

 Appellant walked towards the parked car. Talbert noticed 

that the car's motor was running and the driver's window was 

down. As appellant walked beside the car on the street side, the 

following events occurred according to Talbert's testimony: 

 [Appellant] slipped his left hand into the 

car. When he pulled it back out, he was no 

longer holding the black pouch that he 

originally had been holding. At that time, 

he put his hands down in front of him, and 

then he kind of discretely changed the pager 

from right hand to his left hand. About this 

time, he was at the back of the car . . . . 

 At this point the officer stopped his vehicle and walked to 

the place where the pouch had disappeared. He shined his 

flashlight into the car and observed the black pouch laying on 

the floor in the back seat behind the driver's seat. Talbert 

testified that all of these facts and circumstances together led 

him to the conclusion that he had observed a drug transaction. 

He stated that "the actions of [appellant] were typical of what I 

have seen, not only from being in a police vehicle and pulling up 

on people, but from surveillances, observing throwdowns." 
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 Talbert reached into the car, seized the pouch, and observed 

that it contained rock-like substances in clear plastic baggies. 

 Further observation revealed that the pouch contained seven 

baggies with a rock of cocaine valued at fifty dollars in each 

bag. Appellant was placed under arrest for possession of cocaine 

with intent to distribute. Additional cocaine was found in the 

trunk of the vehicle in a coat belonging to appellant. 

 The trial court denied the motion to suppress the drug 

evidence for the following reason: 

 Well, the officer articulated very well 

 . . . . But his indication was the hand-tohand contact; the high drug area; the 

splitting of the two men, going in opposite 

directions; your client, obviously, getting 

rid of what he had in his hand; the pager. I 

think he had the right to go to the vehicle 

and get the pouch. 

 Once he looks in the pouch, if he can 

legally look in that pouch, then, of course, 

he can legally go in the trunk. 

 Although none of these factors is sufficient by itself to 

constitute probable cause, it is their combination under the 

particular circumstances confronting Talbert that is the proper 

subject of our consideration. Probable cause exists if the 

totality of the circumstances, as viewed by a reasonable and 

prudent police officer in light of his training and experience, 

would lead a man of reasonable caution to believe that the item 

to be seized may be contraband or useful as evidence of a crime. 

 Such belief need not be correct or more likely true than false. 

 The majority states that the behavior observed by Talbert 
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could have been equally indicative of lawful activity, especially 

in light of the fact that he did not see what was being exchanged 

by the parties. Given this set of circumstances and the order in 

which they occurred, Talbert concluded that Evans had engaged in 

or was engaged in criminal activity. I cannot perceive any 

innocent explanation for the sequence of the appellant's 

behavior, and he did not suggest any in the trial court or in 

this Court. 

 In taking this position, the majority has abandoned the 

standard of "reasonable belief" and requires the Commonwealth to 

prove a "prima facie" case. If the Commonwealth is required to 

directly prove the presence of cocaine, we are no longer dealing 

with probabilities but with a higher standard than the law 

requires. The Supreme Court has put this issue to rest. In 

Illinois v. Gates, 462 U.S. 213 (1983), the Court said: 

 [P]robable cause requires only a probability 

or substantial chance of criminal activity, 

not an actual showing of such activity. By 

hypothesis, therefore, innocent behavior 

frequently will provide the basis for a 

showing of probable cause; to require 

otherwise would be to sub silentio impose a 

drastically more rigorous definition of 

probable cause than the security of our 

citizens demands. We think the Illinois 

court attempted a too rigid classification of 

the types of conduct that may be relied upon 

in seeking to demonstrate probable cause. 

 . . . In making a determination of probable 

cause the relevant inquiry is not whether 

particular conduct is "innocent" or "guilty", 

but the degree of suspicion that attaches to 

particular types of noncriminal acts. 

462 U.S. at 243-44, n.13. See also United States v. Sokolow, 490 
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U.S. 1, 8 (1989). 

 This Court's decision in DePriest v. Commonwealth, 4 Va. 

App. 577, 359 S.E.2d 540 (1987), cert. denied, 488 U.S. 985 

(1988), cited in the majority opinion in support of their 

position, in fact supports my point of view in this case. The 

only evidence presented by the Commonwealth in DePriest was that 

an experienced police officer was conducting a surveillance. He 

observed several persons approach DePriest and a companion and 

give them money. One of them would leave and, in about five 

minutes, return and give something to the person. The officer 

could not identify the item exchanged for money. According to 

the officer, he arrested DePriest "'based upon my observation of 

Mr. Toney and Mr. DePriest for the three and a half hour period, 

and then based upon the contraband found on Mr. Toney and based 

upon the currency that I had observed Mr. Toney give Mr. DePriest 

after what I suspected to be drug transactions, and based on my 

experience.'" Id. at 581-82, 359 S.E.2d at 542. 

 In rejecting the Commonwealth's argument in DePriest, this 

Court stated that the events witnessed by the officer provided 

him with a mere suspicion of criminal activity but not probable 

cause. The Court explained the rationale behind its decision as 

follows: 

 It is relevant in this regard that [the 

officer] did not observe suspected narcotics 

change hands, nor did he observe the exchange 

of any object which in his experience 

suggested narcotics. Further, there was no 

evidence that the area under surveillance was 

noted for [drug] transactions, or that the 
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transactions observed were furtive in nature. 

 In summary, while the events observed by 

Detective Carter were suspicious they did 

not, alone, establish probable cause. 

4 Va. App. at 585, 359 S.E.2d at 544. 

 All of these factors, noted as missing in DePriest, are 

present in this case, but have not been mentioned in the majority 

opinion. 

 The majority cites Smith v. Commonwealth, 12 Va. App. 1100, 

407 S.E.2d 49 (1991), and Commonwealth v. Grimstead, 12 Va. App. 

1066, 407 S.E.2d 47 (1991), as authority for its position. I 

disagree because the totality of the circumstances in each of 

these cases is clearly distinguishable. 

 In Smith, we pointed out some of the factors to be 

considered in examining the circumstances necessary to show 

criminal activity. We said we may consider "'the 

"characteristics of the area" where the stop occurs, the time of 

the stop, whether late at night or not, as well as any suspicious 

conduct of the person accosted such as an obvious attempt to 

avoid officers or any nervous conduct on the discovery of their 

presence.'" Id. at 1103, 407 S.E.2d at 51-52 (citations 

omitted). As stated by the majority, the only evidence present 

in the Smith case was that 

 the arresting officer saw the [accused] at 

night in a playground in a drug area and saw 

him quickly move to put his hand into his 

pants when the officer's marked car came into 

view. However, the officer observed no other 

behavior that would have indicated that the 

appellant was involved in criminal activity. 
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The facts here are clearly distinguishable from that case. 

 In Grimstead, the police officer stopped the defendant for 

speeding. He observed in open view a hemostat in the ashtray. 

He removed Grimstead from the car. He testified that in his mind 

"he needed to make an observation as to whether or not they had 

been used as any illegal use, anything other than their intended 

use; and to do so, I needed to examine them." Id. at 1068, 407 

S.E.2d at 48. This testimony showed that the officer did not 

believe he had probable cause to seize the item. The officer 

seized the hemostat and observed marijuana residue on the tips of 

the hemostat. Based upon those facts, this Court held that the 

officer did not have probable cause to seize the hemostat as 

evidence of a crime. Again, this case is clearly distinguishable 

upon the facts. 

 A case factually more analogous to this case is United 

States v. Green, 670 F.2d 1148 (D.C. Cir. 1981). In Green, an 

experienced police officer in an area known for drug activity 

observed two (other) persons engaged in a transaction of a type 

common to drug peddling. The officer noticed that the parties 

attempted to conceal the exchanged object. The defendant, when 

he noticed the police approaching, turned and rapidly walked away 

and made a motion as if to dispose of the object he was carrying. 

 The trial court found that the totality of circumstances 

presented was sufficient to establish probable cause. It relied 

upon these factors: (1) the sequence of events between the 
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parties which was typical of a two-party narcotic transaction; 

(2) the movement of the three persons' cupped hands and Green's 

subsequent stuffing of the protruding paper bag back into his 

coat pocket, suggesting an attempt to conceal the object; and (3) 

the appearance of flight and evasion when pursued by the officer. 

 Based upon the combination of these factors, the circuit court 

held the evidence sufficient to constitute probable cause. 

 Based upon the foregoing facts and case law analyses, I find 

that the evidence is sufficient to establish probable cause for 

Officer Talbert to seize the black leather pouch. Accordingly, I 

cannot find that the trial court was plainly wrong or that its 

decision was without credible evidence to support it in refusing 

to suppress the drug evidence. I would affirm the decision of 

the trial court.