Filadelfo Gomez v. Commonwealth ( 2003 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Elder, Bumgardner and Kelsey
Argued by teleconference
FILADELFO GOMEZ
MEMORANDUM OPINION * BY
v. Record No. 0347-02-4 JUDGE RUDOLPH BUMGARDNER, III
JULY 8, 2003
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Dennis J. Smith, Judge
Crystal A. Meleen (Lopez, Meleen & Sprano,
PLC, on brief), for appellant.
Jennifer R. Franklin, Assistant Attorney
General (Jerry W. Kilgore, Attorney General,
on brief), for appellee.
A jury convicted Filadelfo Gomez of distribution of
cocaine. He contends the trial court erred by not suppressing
statements he made during custodial interrogation. He maintains
the police never had probable cause to arrest him. Finding no
error, we affirm.
We view the evidence and the reasonable inferences
therefrom in the light most favorable to the Commonwealth.
Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d
47, 48 (1991). An undercover detective made three large
purchases of cocaine from Jose Luna. Before each purchase, the
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
detective arranged the purchase with Luna and fixed a time and
place to meet him. Each time, Luna arrived in a gray van owned
and driven by Jose Delcid. Luna would get into the detective's
vehicle, complete the sale, return to the van, and leave in it.
Shortly after leaving the scene of the second sale, the
detective observed the defendant in the van with Luna and
Delcid.
Before the third purchase, the detective arranged to meet
Luna at 8:00 p.m. As he approached the selected meeting spot,
the detective maintained cell phone contact with Luna. Delcid
drove the van into the parking lot and parked. Luna exited,
walked off a short distance, and waited for the detective, who
arrived five minutes later. The detective first drove to the
van and asked the occupants where Luna was. The defendant sat
in the front passenger seat, and Delcid had remained in the
driver's seat. Both men gestured to their left, and the
defendant said something in Spanish about "waiting." The
detective proceeded in the direction they indicated and found
Luna. Luna got into the detective's car and completed the sale.
The detective then signaled for the concealed arrest team to
execute the arrest plan.
Officers blocked the van, removed the occupants, and patted
them down. They handcuffed the defendant and sat him on the
curb. While doing that, the police discovered a bag of cocaine
in the pocket of the front passenger door. After the police
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took the defendant to the police station and informed him of his
Miranda rights in Spanish, he made the statements that he sought
to suppress at trial.
The trial court found the police had probable cause to
believe that the defendant was involved with the drug deal.
"[P]robable cause is a flexible, common-sense standard." Texas
v. Brown, 460 U.S. 730, 742 (1983). An officer is permitted to
make "'common-sense conclusions about human behavior'" in
determining the probability of criminal activity. Id. (quoting
United States v. Cortez, 449 U.S. 411, 418 (1981)). In
ascertaining the existence of probable cause, we "test what the
totality of circumstances meant" to trained police officers.
Hollis v. Commonwealth, 216 Va. 874, 877, 223 S.E.2d 887, 889
(1976).
The van transported Luna and the drugs to each transaction.
"[P]olice may search an automobile . . . [in which] they have
probable cause to believe contraband or evidence is contained."
California v. Acevedo, 500 U.S. 565, 580 (1991). After Luna
completed the drug sale, the police had probable cause to arrest
him and to search the van for contraband. "[A]n officer may
search an automobile incident to an arrest, even if the officer
has not initiated contact while the arrestee was still in the
automobile." United States v. Thornton, 325 F.3d 189, 194 (4th
Cir. 2003).
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The officers were entitled to maintain the status quo by
temporarily detaining the van's occupants and patting them down
for weapons. United States v. Sakyi, 160 F.3d 164, 169 (4th
Cir. 1998) (police may remove and pat-down occupants of lawfully
stopped vehicle when they have reasonable suspicion it contains
drugs). See also Maryland v. Wilson, 519 U.S. 408, 415 (1997)
(officer may order passenger out of lawfully stopped vehicle).
The defendant concedes the police could remove him from the van.
As the police removed the defendant from the van, they saw
cocaine in the door pocket beside the defendant's seat. At that
point, the officers had probable cause to arrest the defendant
for participating in the drug deal. The defendant was in the
van with Luna and Delcid shortly after the second drug sale. On
the last occasion, he sat in the front passenger seat while Luna
talked on his cell phone and directed the detective to the
meeting place. The defendant directed the detective toward Luna
and indicated Luna was waiting. The defendant sat inches from a
supply of cocaine. Based on the totality of circumstances, the
trial court could find that the officers had probable cause to
arrest the defendant. Accordingly, we affirm the conviction.
Affirmed.
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