COURT OF APPEALS OF VIRGINIA
Present: Judges Ru ssell, Malveaux and Senior Judge Clements Argued at Richmond, Virginia

DOUGLAS LEON JONES MEMORANDUM OPINION * BY v. Record No. 0382-18-2 JUDGE JEAN HARRISON CLEMENTS APRIL 23, 2019 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COUR T OF HENRICO COUNTY Gary A. Hicks, Judge John B. Mann for appellant. Rosemary V. Bourne, Senior Assi stant Attorney General (Mark R

. Herring, Attorney General, on brief), for appellee.
Appellant, Douglas L. Jones, e ntered conditiona l guilty pleas to charges of possession of ammunition after having been c onvicted of a felony and possessi on of heroin. 1 He argues on appeal that the trial court erred in denying his motion to supp ress evidence obtained by police officers following a traffic s top. We hold that under existing case law, the evidence should have been suppressed.
BACKGROUND On June 8, 2017, Officer Stephens of the Henrico County Police Department stopped appellant’s car in a “high drug a rea” for a suspected window ti nt violation. Upon checking the license plate number, the officer learned that there was possib ly a warrant for appellant’s arrest.

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

1 The sentencing order does not ref lect that appellant entered c onditional guilty pleas, but the transcript of the plea hearing on February 15, 2018, shows that conditional pleas were entered. On remand, the trial cou rt should correct this cleric al error. See Code § 8.01-428(B).UNPUBLISHED- 2 - Stephens ordered appellant out of the car and handcuffed him. When appellant opened his car door, Stephens saw in plain view fol ded lottery tickets in the door pocket consistent with drug packaging. Stephens testified at the suppression hearing that in the previous few years “well over fifty percent of the time, he roin packaged for sale or use is packaged in folded lottery tickets of some kind.” 2 After Stephens determined that th e warrant was not active, he r emoved appellant’s handcuffs. The officer then rem oved a folded lottery ticket fr om the door compartment, unfolded it, and determined t hat it did not contain any drugs. He removed a second ticket from the door, opened it, and “could see tan powder residue [he knew ] to be consistent with heroin.” Stephens asked appellant if the re were more drugs in the car. Although appellant denied having more drugs in the car, Stephens f ound a folded lottery ticket i n the car’s center console when he searched the car. That ticket c ontained a tan powder that Step hens believed was heroin. Officer Gilroy also was prese nt during the traffic stop. After Stephens found the residue in the ticket in the door, G ilroy placed appellant back in hand cuffs and advised him of his rights pursuant to Miranda v. Ariz ona, 384 U.S. 436 (1966). After Ste phens found the heroin and a cut straw in the center console, appellant admitted that he used th e straw to ingest heroin. Appellant also admitted that the police might find more drugs in his hous e and signed a consent waiver allowing a search. The police found ammunition in appellant’s residence.
ANALYSIS The denial of a motion to suppr ess evidence is reviewed on appe al in the light most favorable to the Commonwealth wit h the benefit of all reasonabl e inferences fairly deducible

2 Officer Lafollette responded to t he scene to check the window tint of appellant’s car. He also saw the folded lottery t ickets in the door panel. He t estified at the suppr ession hearing as an expert in drug packaging that heroin was “commonly packaged” in folded lottery tickets and that ninety-five percent of the folded tickets with which he ha d come in contact had held heroin.- 3 - from that evidence accorded t o the Commonwealth. See Sidney v. Commonwealth, 280 Va. 517, 520 (2010). The appellant must s how that the denial of th e suppression motion was reversible error. Id. at 5 22. The appellate court is bound by the circuit court’ s findings of fact unless “plainly wrong or without e vidence to support them.” Gr egory v. Commonwealth, 64 Va. App. 87, 93 (2014). This Court gi ves deference to the tria l court’s findings of fact, but reviews de novo the trial court’s application of the law to the particular fac ts of the case. Glenn v. Commonwealth, 275 Va. 123, 130 (2008). Probable cause is a flexible, c ommon-sense standard, requiring only a probability of criminal activity. See Harmon v. Commonwealth, 15 Va. App. 440, 444 (1992) (“[a]ctual proof that criminal activity is afoot is not necessary; the record need only show that it may be afoot”); see also District of Col umbia v. Wesby, 138 S. Ct. 577, 586 (20 18) (“Probable cause ‘is not a high bar.’” (quoting Kaley v. United States, 134 S. Ct. 1090, 1 103 (2014))). Therefore, “[u]nlike a factfinder at trial, ‘reasonabl e law officers need not resolv e every doubt about a suspect’s guilt before probable cause is estab lished.’” Joyce v. Commonwealth, 56 Va. App. 646, 660 (2010) (quoting Slayton v. Commonwealth, 41 Va. App. 101, 107 (2003)). Whether probable cause exists is determined by examining the “totality-of-the-circumst ances.” Illinois v. Gates, 462 U.S. 213, 238 (1983). Appellant argues that the initi al search of the lottery tickets in the car door was unlawful and that all evidence stemming f rom that search should have bee n suppressed. We agree. Under existing precedent of both our Supr eme Court and this Court, a police officer may seize and search an item only if its “incrim inating character” is “immedi ately apparent.” The record here does not establish that fact. In Grandison v. Commonwealt h, 274 Va. 316 (2007), an officer co nducted a pat-down search of Grandison following a t raffic stop of a vehicle that had been reported stolen. Id. at- 4 - 318. The officer observed “a folded dollar bill protruding fro m Grandison’s watch pocket.” Id. at 321. The officer recognized the f old as an “apothecary fold ” and removed the dollar bill because, based on his training and experience, he knew that dru gs were frequently packaged in such a manner. Id. at 319. The officer found cocaine inside t he dollar bill, and Grandison was convicted of possession of cocai ne. Id. at 318-19. However, t he Supreme Court of Virginia reversed his conviction because the dollar bill was an object w ith a legitimate purpose and “[n]o other circumstances indicated c riminal activity.” Id. at 321. The Court concluded that the officer lacked probable cause to remove the dollar bill from Gr andison’s pocket. Id. The Supreme Court reached a sim ilar conclusion in Cost v. Commo nwealth, 275 Va. 246 (2008). In Cost, a police officer f elt “numerous capsules” in Cost’s pants pocket during a pat-down search, which he removed because he “knew,” based on h is training and experience, that they contained heroin. I d. at 249-50. Reversing the conv iction, the Court determined that “the character of the capsules seized from Cost’s pants pocket could not have been immediately apparent to Officer Davis as a result of the pat- down search” b ecause legal medications such as Motrin and Tylenol are frequentl y packaged in capsule form. Id . at 253-54. In Cauls v. Commonwealth, 55 V a. App. 90 (2009), a police offic er saw “the knotted and frayed end of a plastic baggy pr otruding from the watch pocket” of Cauls’ pants and removed the baggy. Id. at 95. Following the ho ldings of Grandison and Cos t, this Court reversed the conviction for possession of cocai ne because “plastic baggies a re often used for legitimate purposes that do not involve the packaging of narcotics” and th e officer’s “observation of the plastic knot and fray, standing al one, could not provide him wi th probable cause because the object’s incriminating character w as not immediately apparent.” Id. at 101-02. The facts in this case raise a similar concern as in Grandison, Cost, and Cauls. Lottery tickets have a legitimate purpose. The incriminating nature of the folded tickets that Officer- 5 - Stephens saw in appellant’s car was not immediately apparent to him. Accordingly, we hold that the trial court erred in denying t he motion to suppress the evi dence found in appellant’s car. Further, we conclude that the st atements appellant made to the officers and the additional evidence found at his house al so should have been suppressed. This evidence is not attenuated from the primary taint associate d with the evidence initially f ound in appellant’s car. See Wong Sun v. United States, 371 U.S. 471, 487-88 (1963).
CONCLUSION We hold that the presence of f olded lottery tickets in appella nt’s car did not give Officer Stephens probable cause to seize and search the tickets and, th us, the trial court erred in denying appellant’s motion to suppress ev idence. We reverse appellant’ s convictions and remand the

case. Reversed and remanded.