COURT OF APPEALS OF VIRGINIA
Present: Judges Hump hreys, Clements and Kelsey Argued by teleconference

COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION * BY v. Record No. 1672-03-2 JUDGEROBERT J. HUMPHREYS JANUARY 6, 2004 JASON IMMANUEL COLEMAN

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Herbert C. Gill, Jr., Judge Steven A. Witmer, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellant. John G. LaFratta (Rhonda L. Earhar t; Main Street Law, on brief), for appellee.
The Commonwealth appeals a decision of th e trial court, pursua nt to Code § 19.2-398, suppressing evidence pertaining to Jason I. Cole man’s indictment for poss ession of cocaine with intent to distribute, in violation of Code § 18.2-248 (an “Unclassified Felony”). 1 The Commonwealth argues the trial court erred in finding that police lacked the requi site probable cause to lawfully arrest Cole man. For the reasons th at follow, we reverse th e trial court’s ruling and remand for further pr oceedings consistent with this opinion.

* Pursuant to Code § 17.1-413, this opinion is not designated for publication. Moreover, as this opinion has no precedential value, we re cite only those facts necessary to our holding.

1 Coleman was also charged with a misdemeanor offense of driving on a suspended license, in violation of Code § 46.2-301.- 2 - I. Background When addressing an allegation of error arisin g from a ruling on a mo tion to suppress, we review the evidence in the light most favorable to the party prevailing below, together with all reasonable inferences that may be drawn. See Smith v. Commonwealth , 41 Va. App. ___, ___ S.E.2d ___ (Nov. 25, 2003). Th e burden to establish that the denial of the motion to suppress constituted reversible error rests with the appellant. See Fore v. Commonwealth , 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980). The relevant facts in this case are not in disp ute. On September 2 6, 2002, at approximately 10:10 p.m., Detective D.G. Henderson, of th e Chesterfield County Police Department, was conducting surveillance of the Par Three Motel in Ch esterfield County. He and other officers in his unit were “getting ready to set up a controlled buy in there and do a takedown.” Detective Henderson observed a black Chevy Caprice drive into the parking lot of the motel shortly after he arrived. The driver of the car turned the headlights off immediately after entering the parking lot, and drove to th e building near the rental office. Henderson later learned that Coleman was the driver of that car. Rodney Goodwin was Coleman’s passenger. Detective Henderson saw Coleman and Goodwin get out of the car and enter one of the motel rooms. He then saw a fema le, along with a “couple other subj ects,” walk across the parking lot and enter the same room. Approximately three mi nutes later, Henderso n observed Coleman an d Goodwin leave the room and get back into the Chev y Caprice. Coleman started the car, drove out of the parking lot, and traveled “southbound on Jeff Davis Highway.” Detective Henderson followed in his unmarked patrol car and contacted “the other units,” advising them of what he had observed. Approximately “a minute” later, Detective Henderson saw Cole man “pull into [a] Pilot Gas Station” and park next to a pay phone. The Pilot Gas Station wa s located in “Colonial Heights,”- 3 - just outside of Ch esterfield County. 2 A male, who Detective Hend erson later learned was Mark Shiers, was standing next to th e gas station pay phone. Henderson saw Goodwin get out of the car and walk across the parking lot. He then saw Shie rs get into the car and cl ose the door. Detective Henderson observed Coleman and Shiers engage in “what appeared to be [a] hand-to-hand exchange.” At that point, Detective Hend erson and the other units that had arrived approached the car on foot. One of the officers, “O fficer Gotsy,” observed “some U. S. currency in one [of Coleman’s] hand[s] and some crack cocaine in another of [Coleman’s] hands.” Officer Gotsy “communicated” this information to Dete ctive Henderson. The offi cers then ordered Colema n out of the car. Upon searching Coleman, the of ficers found two twenty dollar bill s in Coleman’s pants pockets and a cellular phone. They found a fi ve dollar bill and a on e dollar bill in the “seat” of the car. Detective Henderson pla ced Coleman under arrest for “pos session of cocaine” and read him his Miranda rights. Coleman then told Henderso n that he had “throw[n] cocaine underneath the [car].” Coleman stated that it was “around 3 grams.” Coleman next “admitted to going to the Par Three Motel and sellin g $20 worth of cocaine. He stated he did not sell an y cocaine to [Shiers]. He further stated that he was having hard times because no one wants to hire him. And he stated that his past is following him.” A Chesterfield County grand jury subsequently indicted Coleman for possession of cocaine with intent to distribute, in violation of Code § 18.2-248. The indictment alleged that Coleman engaged in the unlawful conduct “on or ab out, September 26, 2002” in the “County of Chesterfield.”

2 The Commonwealth stipulated that the Pilot Gas Station was “more than 300 yards outside of [Chesterfield County].”- 4 - During the hearing on Coleman’ s motion to suppress, Henderson testified that he had “been involved in narcotic s investigation” for “[t]hr ee[-]and[-]a[ -]half year[s].” He stated he had made “[h]undreds of drug arrests.” De tective Henderson testified that the activity Coleman engaged in at the gas station “raise[d]” his suspicions that a drug transaction was occurring at that time. Henderson agreed that he did not obse rve any crime at the Par Three Motel. Coleman argued this evidence established that Detective He nderson observed no crime and, therefore, had no “probable cause” “to stop” Co leman until Henderson fo llowed Coleman “outside of [Henderson’s] jurisdiction.” The Commonwealth responded it may very well be illegal for a prope r arrest, an arrest in violation of state code. But no evidence de rived therefrom it [sic] would be suppressed. The exclusionary rule works only as a remedy to violations of the [sic] constitutio nal import . . . . But there is no constitutional violation. Becaus e the officers, whether you call them citizens at that point or po lice officers, they observed conduct that gave them probable cause to believe that a felony offense was occurring. . . . [T]hat confessi on was lawfully obtained in the course of the investigation to [sic ] a Colonial Heights crime, to an offense there. After reviewing briefs 3 filed by the parties, the trial court sustained Coleman’s motion. The Commonwealth, thereafter, filed a motion to vacate the su ppression order, argu ing that the trial court failed to “adequately stat e the basis for the Court’s decisi on.” The Commonwealth contended this failure would inhibit its efforts to “perfect[] an appeal.” The trial cour t vacated the order, then later sustained Coleman’s motion to suppress once again, explicitl y “adopting” Coleman’s

“ argument ,” “on 4th amendment [sic] grounds,” that: there was no probable cause to arre st [Coleman] for distribution of cocaine in Chesterfield County; th at had they made an arrest for distribution or possession of cocai ne in Colonial Heights, though that would have been a statutory violation, the case law says the

3 In his brief before the trial court, Colema n also argued that his confession was not made freely and voluntarily.- 5 - statutory violation does not bring into play the fruits of the poisonous tree argument. But in this case, since the probable cause is that he possessed cocaine at a convenience store inColonial Heights, there was never probable cause developed fo r distribution in Chesterfield. So it is a different argument in the line of cases that follows essentially, Judge. 4 (Emphasis added). II. Analysis On appeal, the Commonwealth argues that the trial court erred in finding police lacked the requisite probable cause to arrest Coleman. We agree and reverse the trial court’s decision. On review of a motion to suppress, “[w]e 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 infe rences 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 v. United States, 517 U.S. 690, 699, 116 S. Ct. 1657, 1659, 134 L. Ed. 2d 911 (1996)). However, we review de novo the trial court’s appli cation of defined legal standards such as probable cause and reasonable suspicion to the particular facts of the case. See Shears v. Commonwealth , 23 Va. App. 394, 398, 477 S.E.2d 309, 311 (1996); see also Ornelas , 517 U.S. at 699, 116 S. Ct. at 1659. Hayes v. Commonwealth, 29 Va. App. 647 , 652, 514 S.E.2d 357, 359 (1999). The Commonwealth argues specifi cally that Detective Hender son had probable cause to arrest Coleman after he “saw th e hand-to-hand transact ion” and after anothe r officer saw suspected cocaine in Coleman’s hand. T hus, the Commonwealth contends the officers “properly arrested [Coleman] for possession of cocaine in Colonial Heights” and the fact that the officers “were

4 Based upon Coleman’s argument in this regard, as well as the trial court’s ruling adopting the argument as the basis for its ru ling, it appears that Coleman abandoned any argument that his statement was not made freely or voluntarily.- 6 - outside their territorial jurisdiction is of no constitutional moment.” (Emphasis in original). Coleman responds that Detectiv e Henderson arrested Coleman fo r “distribution of cocaine in Chesterfield County wh ile in Colonial Heights” although “he did not have probable cause in Chesterfield County.” Accordingl y, Coleman argues the arrest, and any fruits derived therefrom, were in violation of his constitutional rights. “A police officer has authority to arrest within the ju risdiction in which the officer serves or within statutorily defined extensions of that area.” Weaver v. Commonwealth, 29 Va. App. 487, 490, 513 S.E.2d 423, 425 (1999). Code § 19.2-250(A) provides: Notwithstanding any other provisi on of this article and except as provided in subsection B hereof, th e jurisdiction of the corporate authorities of each town or c ity, in criminal cases involving offenses against the Commonw ealth, shall extend within the Commonwealth one mile beyond the corporate limits of such town or city; except that such jurisdic tion of the corporate authorities of towns situated in counties having a density of popul ation in excess of 300 inhabitants per square mile, or in counties ad jacent to cities having a population of 170,000 or more, shall extend for 300 yards beyond the corporate limits of suchtown or, in the case of the criminal jurisdiction of an adjacent county, for 300 yards within such town. Assuming Detective Henderson violated this stat ute by arresting Coleman “more than 300 yards” outside of his county of jurisdiction, we find that the arrest was otherwise constitutional. In Penn v. Commonwealth, 13 Va. App. 399, 412 S.E.2d 189 (1991), aff’d , 244 Va. 218, 420 S.E.2d 713 (199 2), we explicitly held that the exclusionary rule adopted in Mapp v. Ohio , 367 U.S. 643 (1961), does not operate to exclude evidence from an arrest that is statutorily defective, but otherwise constituti onally valid. Penn , 13 Va. App. at 406-07, 412 S. E.2d at 193. The Virginia Supreme Court has rejected the in vitation to adopt a state exclusi onary rule for arrests that are constitutionally valid but which may violate a stat utory provision. See Horne v. Commonwealth , 230 Va. 512, 519, 339 S.E.2d 186, 191 (1986). Therefore, in this case, even if Coleman’s arrest was- 7 - “illegal” because Detective Hend erson was a Chesterfie ld County police offi cer who had exceeded his authority to arre st in Colonial Heights, the dispositive issue is whet her Detective Henderson’s arrest of Coleman violated any federal constitu tional guarantees which th e exclusionary rule, as enunciated in Mapp, wa s designed to protect. As a general rule of constitutional law, [a] police officer may detain an individual to conduct a brief investigation without violating the Fourth Amendment when the officer has a reasonable, articul able suspicion that a person is engaging in, or is about to enga ge in criminal activity. The officer’s justification for stopping the individual need not rise to the level of probable cause, but must be based on more than an “inchoate and unparticulari zed suspicion or ‘hunch.’” O’Banion v. Commonwea lth, 33 Va. App. 47, 62-63, 531 S.E.2d 599, 606-07 (2000) (quoting Terry v. Ohio, 392 U.S. 1, 27 (1968)). More over, an officer may make a warrantless arrest if he has probable cause to believe th e arrestee has committe d a crime. Thomps on v. Commonwealth, 10 Va. App. 117, 121, 309 S. E.2d 198, 201 (1990). “As an articulated legal stan dard, probable cause deals with probabilities concerning the factual and practical considerations in everyday life as perceived by reasona ble and prudent persons. It is not predicated upon a clinical anal ysis applied by le gal 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 fo r purposes of crime control.” DePriest v. Commonwealth , 4 Va. App. 577, 584, 359 S.E.2d 540, 543 (1987) (quoting Washington v. Commonwealth, 219 Va. 857, 862, 252 S.E.2d 326, 329 (1 979)) (other citations omitted). Here, Detective Henderson: 1) observed Coleman stop brie fly at the Par Three Motel in Chesterfield County, which was an area known for drug activity; 2) observed Coleman drive his car to the Pilot Gas Station in Col onial Heights; 3) observed Cole man’s passenger exit the car and another man who was waitin g at the station get into the car; and 4) observed a hand-to-hand- 8 - transaction between the tw o men. At that point in time – in te rms of the Four th Amendment - Detective Henderson had reasonable suspicion to detain Coleman an d was constitutionally permitted to conduct a brie f investigation to either confirm or dispel his suspicions. O’Banion, 33 Va. App. at 62-63, 531 S.E.2d at 606-07. Once Henderson’s fe llow officer observed what he believed to be cocaine in Coleman’s hand and communicated this info rmation to Henderson, Detective Henderson had sufficient probable cause to arrest Cole man for that particular crime. Thompson, 10 Va. App. at 121, 309 S.E.2d at 201. Indeed, Coleman’s contention below and on appeal that Detective Henderson arrested Coleman for “distribution of co caine in Chesterfield County” is a misstatement belied by the record. 5 Detective Henderson explic itly testified that he arrest ed Coleman for “possession of cocaine,” beforehe read him his Miranda rights. 6 Detective Henderson further testified that Coleman gave his statement, adm itting to selling cocaine in Ches terfield County, in conjunction with the reading of his Miranda ri ghts. Thus, it is clear that De tective Henderson arrested Coleman

5 Coleman contended during oral argument that the trial court made a factual finding that the Colonial Heights arrest was a “ de facto ” arrest for distribution of cocaine in Chesterfield County. However, the record reflects that the trial court merely adopted Coleman’s “argument” on “4th amendment [sic] grounds.” The trial court did not render specific factual findings or rule on the credibility of Detective Henderson’s uncontr adicted testimony.

6 We note that Detective Hende rson testified that, as he approached the car, “it was communicated to [him] that there was cocaine in [Coleman’s] pants pocke t,” and stated that it was at that time that he placed Coleman under ar rest. This testimony is at odds with his earlier testimony that the cocaine was observed in Coleman’s hand and that, upon a search of Coleman’s person, only money and a cellular phone were found. Nevertheless, even assuming that the officers searched Coleman prior to arre sting him, Coleman has never contended that he was unconstitutionally searched. Accordingly, any such claim is waived for purposes of appeal. See Rule 5A:18; see also Ohree v. Commonwealth , 26 Va. App. 299, 308, 494 S.E.2d 484, 488 (1998) (“The Court of Appeals wi ll not consider an argument on appeal which was not presented to the trial court. Rule 5A:18 applies to bar even constitutional claims.” (citations omitted)).- 9 - for his criminal activity in ColonialHeights – not for his criminal ac tivity in Cheste rfield County. It logically follows that , although statutorily defective, the arrest was not unconstitutional. 7 Even were we to assume (w ithout decidi ng) that Detective Hend erson initially arrested Coleman for distribution of cocaine in Chesterfield County, it is clear that the arrest would have nevertheless remained cons titutional. We have sp ecifically recognized that: Probable cause . . . turns only on “‘object ive facts,’ not the ‘subjective opinion’ of a pol ice officer.” Golden v. Commonwealth, 30 Va. App. 618, 625, 519 S.E.2d 378, 381 (1999) (citations omitted). As a result, “the fact that 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 take n as long as the circumstances, viewed objectively, jus tify that action.” Whren v. United States, 517 U.S. 806, 813 (1996) (quoting Scott v. United States, 436 U.S. 128, 138 (1978)). Slayton v. Commonwealth, 41 Va. Ap p. 101, 109, 582 S.E.2d 448, 451 (2003). There can be little doubt, on these facts, that “v iewed objectively,” the circumstan ces provided Detective Henderson with the requisite probable cause to arrest Coleman for the Colonial Heights offense. Thus, although statutorily defective, the arrest was not unconstitutional on th is alternative ground. 8 Once Detective Henderson arrested Coleman, Coleman gave Detective Henderson the incriminating statement concerning the Chesterfield County offense. That statement, given after a constitutionally proper arrest, provided De tective Henderson with the requisite probable cause to arrest and charge Coleman with the Chesterfield County offens e of possession of cocaine with intent to distribute. Accordingly, the arrest and related charge did no t operate to invoke the

7 We nevertheless reiterate that violations of state procedural statutes are viewed by the courts with disfavor. Campbell v. Commonwealth, 194 Va. 825, 831, 75 S.E.2d 468, 472 (1953); Penn, 13 Va. App. at 407, 412 S.E.2d at 194.

8 Because we find the arrest constituti onal on these grounds, we do not reach the Commonwealth’s argument concerning the propriet y of the arrest as a “citizen’s arrest.”- 10 - protections of the exclusionary rule. Penn, 13 Va. App. at 406-07, 412 S.E.2d at 193. We thus find that the trial court plainly erred in adopting Co leman’s argument that “there was never probable cause developed for distribution in Chesterfield” and in excluding the related evidence. For these reasons, we reverse the trial court’s ruling suppressing eviden ce against Coleman and remand for further proceedings consistent with this opinion. Reversed and remanded.