COURT OF APPEALS OF VIRGINIA 

Present: Judges Annunziata, Lemons and Senior Judge Hodges 

Argued at Alexandria, Virginia 

MORRIS B. ARMSTRONG 

 OPINION BY 

v. Record No. 1767-97-4 JUDGE DONALD W. LEMONS 

 FEBRUARY 2, 1999 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF ALEXANDRIA 

Donald M. Haddock, Judge 

 Mary E. Maguire (J. Amy Dillard, Deputy 

Public Defender, on brief), for appellant. 

 Marla Graff Decker, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Morris Armstrong appeals his conviction for possession of 

cocaine alleging that the trial court erred in failing to 

suppress evidence and that the evidence was insufficient to 

sustain his conviction. Finding no error, we affirm his 

conviction. 

 On January 3, 1997 at approximately 9:15 p.m., Alexandria 

Police Officer Diane Gittins was working in a concealed location 

watching for drug violations, a practice known as "spotting." 

Gittins had approximately 2,000 hours of past experience in 

"spotting" and had seen crack cocaine on at least 500 prior 

occasions. The area she had chosen was known for high incidence 

of drug possession and distribution and was well illuminated by 

streetlights. Using 20x80 binoculars located 25 to 50 feet above 

street level and from a distance of less than 100 feet, Gittins 
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observed Armstrong walking down the street followed by two women. 

 Without obstruction and with the aid of visual enhancement, 

Gittins saw Armstrong lift his right hand in front of his body 

and open his palm, exposing a "small, unpackaged, off-white, 

rock-like object" smaller than a pencil eraser which she believed 

to be a rock of crack cocaine. Gittins testified that Armstrong 

looked at the rock of crack cocaine for several seconds then 

closed his hand and "brought it back down to his right side" and 

proceeded to a vehicle with the two women. 

 Gittins then called for back-up officers to arrest 

Armstrong. She watched him enter a brown station wagon and 

observed the vehicle until it moved out of her view. She 

testified that several minutes later she saw the brown station 

wagon on the 200 block of North Payne Street. She called back-up 

officers to the location and gave them the same description of 

Armstrong. 

 Officer Chris Wimple testified that he responded to the 

radio call from Officer Gittins, arrested Armstrong and searched 

him incident to arrest. No contraband was recovered from his 

person. A female officer searched the two women who were with 

Armstrong, and no contraband was recovered from them. After all 

of the parties were searched, Wimple looked inside the station 

wagon and saw a small "off-white, irregularly shaped, rock-like 

object" on the floorboard on the passenger side. He believed it 

to be a rock of crack cocaine. A laboratory analysis later 
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revealed it to be .15 grams of cocaine. Wimple testified that 

there were no other small, white, rock-like objects recovered 

from the vehicle. 

 Wimple transported Armstrong to the police station, where 

Armstrong admitted that he was a drug user and was in the 

neighborhood to buy crack cocaine. He said that the two women 

had just purchased crack cocaine and he was intending to get a 

piece of crack cocaine from them for his own use but the police 

stopped him before he was able to do so. 

 Prior to trial Armstrong moved to suppress the cocaine. The 

court denied his motion to suppress. At the conclusion of the 

evidence at trial, Armstrong moved to strike the evidence as 

being insufficient for conviction. 

 "In reviewing a trial court's denial of a motion to 

suppress, '[t]he burden is upon [the defendant] to show that 

th[e] ruling, when the evidence is considered most favorably to 

the Commonwealth, constituted reversible error.'" McGee v. 

Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) 

(en banc) (citation omitted). While we are bound to review de

novo the ultimate questions of reasonable suspicion and probable 

cause, we "review findings of historical fact only for clear 

error1 and . . . give due weight to inferences drawn from those 

facts by resident judges and local law enforcement officers." 

 

 1"In Virginia, questions of fact are binding on appeal 

unless 'plainly wrong.'" McGee, 25 Va. App. at 198 n.1, 487 

S.E.2d n.1 (citations omitted). 
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Ornelas v. United States, 517 U.S. 690, 699 (1996) (footnote 

added). 

 Armstrong argues that police did not have probable cause to 

arrest him. 

 Probable cause is a flexible, common-sense 

standard, merely requiring that the facts 

available to the officer would warrant a man 

of reasonable caution to believe 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. 

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

have stated that experienced police officers "may be able to 

perceive and articulate meaning in given conduct which would be 

wholly innocent to the untrained observer." Richards v. 

Commonwealth, 8 Va. App. 612, 616, 383 S.E.2d 268, 270-71 (1989). 

 "If an officer has reason to believe that a person is committing 

a felony in his [or her] presence by possessing contraband or a 

controlled substance, the officer has probable cause to arrest 

the individual without a warrant." Buck v. Commonwealth, 20 Va. 

App. 298, 304, 456 S.E.2d 535, 537 (1995). 

 Officer Gittins observed Armstrong in an area known for drug 

trafficking and possession, holding up for observation an 

"unpackaged, off-white, rock-like object." Presumably, the 

object had value because Armstrong closed his fist to maintain 

control over it and proceeded to a parked car with his two female 

companions. Based upon her training and experience and the 

totality of the circumstances, Officer Gittins believed it was 
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crack cocaine. Surely, had the officer been standing immediately 

adjacent to Armstrong and made these observations there would be 

no question about probable cause for arrest. Here, she was aided 

by enhanced vision to achieve the functional equivalent of 

standing immediately adjacent to Armstrong. The trial judge 

stated: 

 This is a very simple matter. Either you 

believe or you do not believe that the 

officer is an expert in the identification of 

crack cocaine. The officer said that the 

individual involved was within 100 feet. The 

officer was using 20-power binoculars, which 

puts that person within the parameters of 5 

to less feet from the officer at the time 

that the officer view[ed] the individual and 

his hand. The officer has seen crack cocaine 

hundreds if not thousands of times before. 

What difference does it make if it happens to 

be imitation crack cocaine. He is not 

required or she is not required to be 

absolutely right, but merely to have probable 

cause to believe that a crime is being 

committed. 

 Armstrong argues that Officer Gittins' observations may not 

be bolstered by the fact that the activities took place in a 

"high volume drug area." He cites Riley v. Commonwealth, 13 Va. 

App. 494, 412 S.E.2d 724 (1992), in which we stated that an 

officer may not use the "reputation of an area for proving 'guilt 

by association.'" Id. at 498, 412 S.E.2d at 726. In Riley, the 

officer "had no prior knowledge of Riley or his possible 

involvement in any criminal activity." Id. at 497, 412 S.E.2d 

726. The arresting officer testified that he had seen Riley "in 

a high crime area late at night" and that "[w]hen Riley exited 
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his vehicle and saw [the officer], Riley turned to face his own 

vehicle, made a motion toward the front of his waistband, and 

closed the door to his vehicle." Id. at 497, 412 S.E.2d at 726. 

 We reversed the defendant's conviction for possession of cocaine 

holding that "[the officer] had no particularized knowledge of 

[his] involvement in any criminal activity" and that his 

"observations and suspicions were insufficient to justify an 

investigatory stop." Id. at 499, 412 S.E.2d at 727. 

 In the case now before us, the question is not whether 

Officer Gittins had reasonable, articulable suspicion to stop 

Armstrong, but whether the officer had probable cause to arrest 

him for possession of cocaine. The officer did not rely upon the 

mere presence of Armstrong in a high drug area to create probable 

cause. Officer Gittins observed Armstrong with what she believed 

was a piece of crack cocaine in his hand. Therefore, Officer 

Gittins had reason to believe that a felony was being committed 

in her presence. "If an officer has reason to believe that a 

person is committing a felony in his [or her] presence by 

possessing contraband or a controlled substance, the officer has 

probable cause to arrest the individual without a warrant." 

Buck, 20 Va. App. at 304, 456 S.E.2d at 537. 

 Armstrong cites Goodwin v. Commonwealth, 11 Va. App. 363, 

398 S.E.2d 690 (1990), in support of his argument that the 

conduct observed by Officer Gittins, "without evidence of a 

transaction or even a conversation with a suspected drug dealer, 
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constitutes innocent behavior." In Goodwin, the defendant 

entered a conditional guilty plea to possession of cocaine and 

possession of a concealed weapon, arguing that the trial court 

erred in denying his motion to suppress on the ground that the 

evidence was the product of an illegal search. Two police 

officers testified that they observed Goodwin in a "high crime 

area," and stated that when Goodwin saw them, he "'jammed' his 

hand into his coat pocket." Id. at 364-65, 398 S.E.2d at 691. 

The officers "did not see any item or article in Goodwin's hand 

or coat pocket." Id. at 365, 398 S.E.2d at 691. We reversed his 

convictions, holding that upon these grounds, "the police lacked 

adequate grounds to stop Goodwin, and . . . the stop was 

illegal." Id. at 367, 398 S.E.2d at 692. Goodwin is 

distinguished from the case before us in one very important 

respect. Officer Gittins observed Armstrong with what she 

believed was a piece of crack cocaine in his hand. 

 Armstrong also argues that Moss v. Commonwealth, 7 Va. App. 

305, 373 S.E.2d 170 (1988), supports his argument that Officer 

Gittins lacked probable cause to arrest Armstrong. In Moss, we 

reversed the defendant's conviction for possession of cocaine, 

holding that the police lacked probable cause or reasonable 

suspicion to detain him. The officer observed Moss standing on 

an intersection with "his arms extended in front of him . . . 

making a twisting motion with something between his fingers." 

Id. at 306, 373 S.E.2d at 171. The officer admitted that he 
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"couldn't make out what was in" the defendant's hand. Id. at 

308, 373 S.E.2d at 172. We held that because the officer's 

observations did not create an adequate basis upon which to stop 

Moss, "the stop was illegal and the cocaine seized as a result 

thereof was improperly admitted into evidence." Id. at 308-09, 

373 S.E.2d at 172. Moss is distinguished from the case before us 

in one very important respect. Officer Gittins observed 

Armstrong with what she believed was a piece of crack cocaine in 

his hand. 

 Armstrong also cites DePriest v. Commonwealth, 4 Va. App. 

577, 359 S.E.2d 540 (1987), to support his argument that a 

finding of probable cause requires more than an officer's 

observation of a suspicious act. In DePriest, an experienced 

police officer observed a sequence of events which the 

Commonwealth argued was typical of a common form of narcotics 

transaction. However, the officer "did not observe suspected 

narcotics change hands, nor did he observe the exchange of any 

object which in his experience suggested narcotics." Id. at 585, 

359 S.E.2d at 544. In affirming DePriest's convictions, we held 

that although the officer's "observations and experience alone" 

were insufficient to establish probable cause, they did amount to 

reasonable, articulable suspicion and the subsequent arrest of 

DePriest was not illegal. Id. at 584, 585-86, 259 S.E.2d at 543, 

544. Unlike the facts in DePriest, however, here Officer Gittins 

saw the object in question and, based upon her training and 
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experience and upon the totality of the circumstances, she did 

have probable cause to believe that the object was crack cocaine. 

 Armstrong maintains that the passage of five minutes between 

the direction to arrest him and the actual arrest undermines the 

probable cause determination. He argues that "the test of 

constitutional validity 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." Bryson v. Commonwealth, 211 Va. 85, 

86-87, 175 S.E.2d 248, 250 (1970). In Bryson, the Supreme Court 

of Virginia held that a police officer who observed a person on 

the street with a piece of paper under a rubber band on his 

finger did not have probable cause to arrest him for operation of 

a lottery under Code § 18.1-340 (repealed 1975), and reversed his 

conviction. 

 Armstrong contends that after Officer Gittins first observed 

him, he drove out of her sight and that when she next saw him, 

the officer did not see any objects in his hand, nor did she see 

him talk with anyone or buy anything. Based upon her testimony, 

Armstrong argues "[a]t the moment just prior to arrest, when she 

called Officer Wimple to arrest Mr. Armstrong, Officer Gittins 

had no current knowledge of facts or circumstances to warrant any 

reasonable person to believe that Mr. Armstrong was committing a 

felony." 

 Armstrong's argument has no legal foundation. He seeks to 
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impose a severe time limitation on the duration of probable cause 

by arguing that probable cause to arrest exists only at the very 

moment that the officer observes the occurrence of the criminal 

activity, and disappears immediately unless the arrest is 

effectuated at exactly that moment. 

 At the moment that Officer Gittins called for Armstrong's 

arrest, her observations had created probable cause for Officer 

Wimple to arrest him. "If an officer has reason to believe that 

a person is committing a felony in his [or her] presence by 

possessing contraband or a controlled substance, the officer has 

probable cause to arrest the individual without a warrant." 

Buck, 20 Va. App. at 304, 456 S.E.2d at 537. The passage of five 

minutes before the arrest was accomplished is of no legal 

significance. 

 The search of Armstrong's vehicle constituted a search 

incident to a lawful arrest. "The only prerequisites to a search 

of an automobile incident to arrest are that the search is 

contemporaneous with the arrest and the arrestee's recent 

occupancy of the vehicle." Glasco v. Commonwealth, 26 Va. App. 

763, 773, 497 S.E.2d 150, 154 (1998). Because Armstrong was in 

the vehicle when Officer Wimple arrested him and the search of 

the vehicle was immediate, the search of the vehicle was properly 

conducted incident to his arrest. In addition, "if a car is 

readily mobile and probable cause exists to believe it contains 

contraband, the Fourth Amendment . . . permits police to search 
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the vehicle without more." Pennsylvania v. Labron & Kilgore, 518 

U.S. 938, 940 (1996). 

 Even if probable cause did not exist, Armstrong concedes 

that "the facts in the case at bar provide grounds for reasonable 

suspicion, at best" for Wimple to conduct a "Terry" stop. 

Pursuant to a valid stop, the officer may ask the occupants of 

the vehicle to exit the vehicle. See Hatcher v. Commonwealth, 14 

Va. App. 487, 419 S.E.2d 256 (1992). After Armstrong exited the 

car, the officer saw the crack cocaine in plain view on the 

passenger floorboard. Evidence may be seized when the officer is 

lawfully in a position to view the item and the illegal character 

of the object is immediately apparent to the officer. See Conway 

v. Commonwealth, 12 Va. App. 711, 718, 407 S.E.2d 310, 314 (1991) 

(en banc). For any one of the reasons above the motion to 

suppress was properly denied. 

 Armstrong also challenges on appeal the sufficiency of the 

evidence. When the sufficiency of the evidence is an issue on 

appeal, an appellate court must view the evidence and all 

reasonable inferences fairly deducible therefrom in the light 

most favorable to the Commonwealth. See Cheng v. Commonwealth, 

240 Va. 26, 42, 393 S.E.2d 599, 608 (1990). On appeal, the 

decision of a trial court sitting without a jury is afforded the 

same weight as a jury's verdict and will not be disturbed unless 

plainly wrong or without evidence to support it. See King v. 

Commonwealth, 217 Va. 601, 604, 231 S.E.2d 312, 315 (1977). 
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 "The Commonwealth may prove possession of a controlled 

substance by showing either actual or constructive possession." 

Barlow v. Commonwealth, 26 Va. App. 421, 429, 494 S.E.2d 901, 904 

(1998). 

 To establish "possession" in the legal sense, 

it is not sufficient to simply show actual or 

constructive possession of the drug by the 

defendant. The Commonwealth must also 

establish that the defendant intentionally 

and consciously possessed it with knowledge 

of its nature and character. 

Burton v. Commonwealth, 215 Va. 711, 713, 213 S.E.2d 757, 758-59 

(1975) (citations omitted). 

 "Knowledge of the presence and character of the controlled 

substance may be shown by evidence of the acts, statements or 

conduct of the accused." Eckhart v. Commonwealth, 222 Va. 447, 

450, 281 S.E.2d 853, 855 (1981). 

 To support a conviction based on constructive 

possession, the Commonwealth must point to 

evidence of acts, statements, or conduct of 

the accused or other facts or circumstances 

which tend to show that the defendant was 

aware of both the presence and character of 

the substance and that it was subject to his 

dominion and control. 

Glasco, 26 Va. App. at 774, 497 S.E.2d at 155 (citations 

omitted). 

 The trial court found that Armstrong had actual possession 

of the crack cocaine in his hand and constructive possession five 

minutes later when the cocaine was found on the floorboard of 

Armstrong's car near where his right foot had been located. 

Armstrong admitted that he was a crack cocaine user, and it can 
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be inferred that he is familiar with its appearance. 

 Considering the totality of the evidence and any reasonable 

hypothesis of innocence, the trial judge stated, 

 Somehow or another between the five minute 

lapse, you want me to speculate that one of 

those ladies got themselves a piece of crack 

cocaine, put it on the floor, and that the 

piece that was in [the defendant's] hands has 

since been smoked, drunk, or otherwise 

disposed of, and that the piece that we find 

on the floor is one of these lady's. And you 

want me to believe that because [the 

defendant], in trying to talk his way out of 

getting arrested by the police, says it is 

not me, it is these two girls that are with 

me. Now you know, when we use common sense 

and you try to come to a reasonable 

conclusion based on the facts that are put in 

front of you and somebody tells you they saw 

a guy with a piece of crack cocaine in his 

hand and five minutes later they stop the car 

and there is crack lying on the floor and 

there isn't any crack on anybody else – the 

car is searched and the man is searched – and 

I am supposed to dream up an extra piece of 

crack cocaine to find a reasonable doubt? 

No, thank you. I find [Armstrong] guilty as 

charged. 

We do as well. The conviction is affirmed. 

 Affirmed.