COURT OF APPEALS OF VIRGINIA 

Present: Judges Baker, Annunziata and Senior Judge Cole 

Argued by teleconference 

JOHN DAVID LOVELACE 

 OPINION BY 

v. Record No. 1075-97-2 JUDGE JOSEPH E. BAKER 

 JUNE 16, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HALIFAX COUNTY 

William L. Wellons, Judge 

 Joseph A. Sanzone (Joseph A. Sanzone 

Associates, P.C., on brief), for appellant. 

 Eugene Murphy, Assistant Attorney General 

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

for appellee. 

 John David Lovelace (appellant) appeals his bench trial 

convictions by the Circuit Court of Halifax County (trial court) 

for possession of marijuana and possession of cocaine with intent 

to distribute. He contends the trial court erred in (1) denying 

his motion to suppress and (2) finding the evidence sufficient to 

prove he intended to distribute the cocaine. For the reasons 

that follow, we affirm the convictions. 

 At about 10:00 p.m. on August 23, 1996, Halifax County 

Deputies Sweeny and Womack saw appellant standing near a 

convenience store in an area "known as a[n] open air drug 

market." He was drinking from a green glass bottle. Deputy 

Sweeny believed the bottle contained beer, and he told appellant 

to drop the bottle and lie face down on the ground. "[S]everal 

other officers converg[ed] on the lot at the same time." "[D]ue 
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to the number of people on the lot," Officer Womack thought it 

was in the officers' best interest "to put these subjects down on 

the ground so we could handle the situation if somebody wanted to 

act up." Womack testified that appellant was being detained 

because of the open container of beer. 

 When Womack told appellant to drop the bottle and lie face 

down on the ground, appellant dropped and broke the bottle. Near 

appellant's feet, Deputy Womack observed several open bottles of 

beer and five unopen bottles of beer in a carton. Womack had 

already seen a bottle hit a car beside appellant as Womack was 

approaching. Womack smelled the odor of alcohol as he was 

talking to appellant, although he could not say whether the odor 

was coming from appellant or from the bottle that had been broken 

nearby. The bottle which hit the car came from the area where 

appellant was standing, but Womack did not see whether appellant 

threw it. 

 Once appellant was on the ground, Womack asked him whether 

he had any drugs or guns. Appellant did not reply. Womack then 

patted appellant down and detected "something in his pocket 

. . . [that] felt like a bag." "[D]uring [Womack's] experience 

[he'd] found drugs before on people, and sometimes they carried 

it in these kind[s] of bags. . . . [He] didn't know if it was a 

plastic bag or what at that time, but [he] felt some lumps and 

. . . felt it to be squooshy." Womack could not tell what was in 

the bag; however, he retrieved the bag, which was later 
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determined to contain 2.38 grams of crack cocaine rocks and 2.96 

grams of marijuana. He placed appellant under arrest for 

possession of marijuana and cocaine. In appellant's possession, 

Womack found a black pouch containing $121 and a razor blade. In 

appellant's pocket, he found $171.30, made up mostly of ten- and 

twenty-dollar bills. 

 Womack, who had been a narcotics investigator for about a 

year and had participated in the investigation and prosecution of 

thirty-five to forty cocaine cases, was accepted by the court as 

an expert. He testified that the bag of cocaine found on 

appellant was "cut up [for sale in dollar amounts of] twenties 

. . . [and] forties." Womack believed that the quantity of 

cocaine was inconsistent with personal use and consistent with 

distribution. Although the form of cocaine found on appellant 

would usually be smoked, Womack found no smoking devices on 

appellant or in his car. Womack further testified that 

possession of the money in ten- and twenty-dollar bills also was 

"consistent with distribution of crack cocaine." 

 Appellant moved to suppress the evidence, claiming he was 

illegally searched and seized without probable cause to arrest 

because the content of the open containers was not confirmed and, 

in fact, he had not been arrested. Even if the officers had 

probable cause to arrest for the alcohol offense, he contended 

the offense required that he be released on a summons without a 

custodial arrest and that Officer Womack was not entitled to 
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conduct a search incident to arrest under those circumstances. 

Moreover, appellant argued that although the patdown may have 

been appropriate, the complete search was not permitted because 

Womack could not identify the plastic bag or its contents by feel 

and Womack did not believe the item was a gun. The trial court 

denied the motion to suppress, holding that the evidence was 

sufficient to give the officers probable cause to conduct the 

search. 

Motion to Suppress

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

"the burden is upon [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 (1980). "Ultimate questions of 

reasonable suspicion and probable cause to make a warrantless 

search" involve issues of both law and fact and are reviewed de

novo on appeal. See Ornelas v. United States, 517 U.S. 690, 691 

(1996). "In performing such analysis, we are bound by the trial 

court's findings of historical fact unless 'plainly wrong' or 

without evidence to support them[,] and we give due weight to the 

inferences drawn from those facts by resident judges and local 

law enforcement officers." McGee v. Commonwealth, 25 Va. App. 

193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing Ornelas, 

517 U.S. at 699). 

 As a general rule of constitutional law, an officer properly 
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may make a warrantless arrest if he has probable cause to believe 

the arrestee has committed a crime, see Thompson v. Commonwealth, 

10 Va. App. 117, 121, 390 S.E.2d 198, 201 (1990) (citing United 

States v. Watson, 423 U.S. 411, 423 (1976)), and the officer may 

search the individual incident to that lawful arrest. See

DePriest v. Commonwealth, 4 Va. App. 577, 583, 359 S.E.2d 540, 

543 (1987) (citing Illinois v. Lafayette, 462 U.S. 640, 646 

(1983)). However, if probable cause is lacking, the arrest is 

illegal, and any evidence seized pursuant to that arrest is 

subject to exclusion under Mapp v. Ohio, 367 U.S. 643 (1961). 

 We hold that Officer Womack's search of appellant's pocket 

did not violate the Fourth Amendment because probable cause 

existed to arrest appellant for drinking from an open container 

of alcohol in violation of Code § 4.1-308, a Class 4 misdemeanor. 

 The existence of probable cause to arrest gave Womack 

constitutional authority to conduct a full search of appellant's 

person incident to that arrest. 

 "'The probable cause standard does not require actual 

knowledge. "Only the probability, and not a prima facie showing, 

of criminal activity is the standard of probable cause."'" 

Quigley v. Commonwealth, 14 Va. App. 28, 34, 414 S.E.2d 851, 855 

(1992) (quoting Wescott v. Commonwealth, 216 Va. 123, 126, 216 

S.E.2d 60, 63 (1975) (citation omitted)). 

 "As an articulated legal standard, probable 

cause deals with probabilities concerning the 

factual and practical considerations in 

everyday life as perceived by reasonable and 

prudent persons. It is not predicated upon a 
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clinical analysis applied by legal 

technicians. In determining whether probable 

cause exists courts will test what the 

totality of the circumstances meant to police 

officers trained in analyzing the observed 

conduct for purposes of crime control." 

DePriest, 4 Va. App. at 584, 359 S.E.2d at 543 (quoting 

Washington v. Commonwealth, 219 Va. 857, 862, 252 S.E.2d 326, 329 

(1979)) (other citations omitted). 

 Here, the officers saw appellant drinking from a green 

bottle. Although that bottle was broken, the officers found at 

appellant's feet several open bottles of beer and five unopen 

bottles in a carton. Officer Womack smelled the odor of alcohol 

as he talked to appellant. This evidence was sufficient to give 

the officers probable cause to arrest appellant for drinking 

alcohol in public. The officers' failure to cite appellant for 

that offense and the Commonwealth's failure to provide evidence 

to support a conviction for that offense are not dispositive 

factors because probable cause deals with probabilities rather 

than certainties. 

 In addition, the officers' subjective motivations in 

searching appellant are not relevant in this case. "Subjective 

intentions play no role in ordinary, probable-cause Fourth 

Amendment analysis." Whren v. United States, 517 U.S. 806, 813 

(1996). "'[T]hat the officer 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 invalidate the 

action taken as long as the circumstances, viewed objectively, 
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justify that action.'" Id. (quoting Scott v. United States, 436 

U.S. 128, 138 (1978)) (emphasis added); see also Ohio v. 

Robinette, 117 S. Ct. 417, 420-21 (1996); Limonja v. 

Commonwealth, 8 Va. App. 532, 537-38, 383 S.E.2d 476, 479-80 

(1989). 

 Despite appellant's argument to the contrary, we hold that 

Code § 19.2-74 does not delimit the officers' constitutional 

authority to search. That code section provides, in relevant 

part, that where a "person is detained by or is in the custody of 

an arresting officer" for a violation punishable as a Class 4 

misdemeanor or any other misdemeanor for which he cannot receive 

a jail sentence, 

 the arresting officer shall take the name and 

address of such person and issue a summons or 

otherwise notify him in writing to appear at 

a time and place to be specified in such 

summons or notice. Upon the giving of such 

person of his written promise to appear at 

such time and place, the officer shall 

forthwith release him from custody. However, 

if any such person shall fail or refuse to 

discontinue the unlawful act, the officer may 

proceed according to the provisions of 

§ 19.2-82. 

Code § 19.2-74(A)(2) (emphasis added). Code § 19.2-74, 

therefore, clearly permits an officer to "detain[]" an alleged 

violator or take him into "custody" long enough to issue a 

summons. 

 In addition, that code section contains no language 

nullifying the officer's ability to search based on the existence 

of probable cause. We hold that the existence of probable cause 
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to arrest pursuant to the Constitution is both necessary and 

sufficient. See United States v. Ricard, 563 F.2d 45, 49 (2d 

Cir. 1977) (holding that probable cause to arrest permitted 

officer to conduct full search without effecting full custodial 

arrest), cert. denied, 435 U.S. 916 (1978); State v. Doran, 563 

N.W.2d 620, 622 (Iowa 1997); State v. Greenslit, 559 A.2d 672, 

674 (Vt. 1989); State v. King, 418 N.W.2d 11, 13 (Wis. Ct. App. 

1987). The Constitution does not require a full custodial arrest 

to permit a complete search of the arrestee; nor does Code 

§ 19.2-74 impose such a requirement. Although a state is free to 

provide safeguards above and beyond those guaranteed by the 

United States Constitution, see Penn v. Commonwealth, 13 Va. App. 

399, 407, 412 S.E.2d 189, 193-94 (1991), aff'd per curiam, 244 

Va. 218, 420 S.E.2d 713 (1992), nothing in Code § 19.2-74 

indicates the legislature's intent to abrogate the authority to 

search based on probable cause. Finally, even if the legislature 

did so intend, violation of the statute would not require 

suppression of evidence obtained in contravention of its terms, 

absent express provision to the contrary by the legislature. See

Thompson, 10 Va. App. at 122, 390 S.E.2d at 201 ("While 

violations of state procedural statutes are viewed with disfavor, 

neither the Virginia Supreme Court nor the legislature has 

adopted an exclusionary rule for such violations.") (citation 

omitted). 

 Here, Officer Womack took appellant into custody on the open 
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container violation, for which he had probable cause to arrest. 

Once appellant was in custody, that probable cause permitted 

Womack to search appellant. Pursuant to that lawful search, 

Womack found cocaine and marijuana, the possession of which 

constituted a felony. 

 Accordingly, we hold that the search of appellant was proper 

and that the trial court properly denied appellant's motion to 

suppress. 

Intent to Distribute

 In reviewing the sufficiency of the evidence, we examine the 

record in the light most favorable to the Commonwealth, granting 

to it all reasonable inferences fairly deducible therefrom. See

Martin v. Commonwealth, 4 Va. App. 438, 443, 358 S.E.2d 415, 418 

(1987). The judgment of a trial court will be disturbed only if 

plainly wrong or without evidence to support it. See id. The 

credibility of a witness, the weight accorded the testimony, and 

the inferences to be drawn from proven facts are matters to be 

determined by the fact finder. See Long v. Commonwealth, 8 Va. 

App. 194, 199, 379 S.E.2d 473, 476 (1989). 

 Circumstantial evidence may establish the elements of a 

crime, provided it excludes every reasonable hypothesis of 

innocence. See, e.g., Tucker v. Commonwealth, 18 Va. App. 141, 

143, 442 S.E.2d 419, 420 (1994). However, "the Commonwealth need 

only exclude reasonable hypotheses of innocence that flow from 

the evidence, not those that spring from the imagination of the 
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defendant." Hamilton v. Commonwealth, 16 Va. App. 751, 755, 433 

S.E.2d 27, 29 (1993). Whether a hypothesis of innocence is 

reasonable is a question of fact, see Cantrell v. Commonwealth, 7 

Va. App. 269, 290, 373 S.E.2d 328, 339 (1988), and a finding by 

the trial court is binding on appeal unless plainly wrong. See

Martin, 4 Va. App. at 443, 358 S.E.2d at 418. 

 "Because direct proof of intent [to distribute drugs] is 

often impossible, it must be shown by circumstantial evidence." 

Servis v. Commonwealth, 6 Va. App. 507, 524, 371 S.E.2d 156, 165 

(1988). Such evidence may include the quantity of drugs and cash 

possessed and whether the accused used drugs. See Poindexter v. 

Commonwealth, 16 Va. App. 730, 734-35, 432 S.E.2d 527, 530 

(1993). Possession of a large sum of money, especially in small 

denominations, and the absence of any paraphernalia suggestive of 

personal use, are regularly recognized as factors indicating an 

intent to distribute. See Colbert v. Commonwealth, 219 Va. 1, 3, 

4, 244 S.E.2d 748, 749, 749 (1978). 

 Here, appellant possessed 2.38 grams of crack cocaine rocks 

and 2.96 grams of marijuana, $292.30 in cash, at least $170 of 

which comprised ten- and twenty-dollar bills, and a razor blade. 

 Officer Womack, qualified as an expert, testified that the 

quantity of cocaine found was inconsistent with personal use and 

consistent with distribution. In addition, Womack testified that 

appellant's possession of the money in ten- and twenty-dollar 

bills was "consistent with distribution of crack cocaine." 
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Finally, although the type of cocaine found on appellant was 

usually smoked, police found no evidence of personal use of 

either the cocaine or the marijuana on appellant or in his nearby 

vehicle. On cross-examination, Womack said the quantity of 

cocaine appellant possessed could possibly have been "used in a 

day" and that appellant could have purchased the drugs as they 

were packaged and could have possessed the razor blade for 

personal use of the cocaine rather than for distribution. 

However, no evidence in the record proved that appellant 

personally used cocaine. Therefore, the only reasonable 

hypothesis flowing from the evidence is that appellant intended 

to distribute the cocaine. 

 For these reasons, we hold that the trial court did not err 

in denying appellant's motion to suppress and in finding the 

evidence sufficient to prove he intended to distribute the 

cocaine. 

 Affirmed.