Latwan Marcel Jackson v. Commonwealth of Virginia ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Willis, Elder and Bray
Argued at Richmond, Virginia
LATWAN MARCEL JACKSON
MEMORANDUM OPINION * BY
v. Record No. 1630-99-2 JUDGE RICHARD S. BRAY
JUNE 12, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
Margaret P. Spencer, Judge
Robert J. Rice (Rice, Everhart & Baber, on
brief), for appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Latwan Marcel Jackson (defendant) was convicted in a bench
trial for possession of cocaine with the intent to distribute and
possession of marijuana, violations of Code §§ 18.2-248 and
-250.1, respectively. On appeal, he complains the trial court
erroneously denied his motion to suppress evidence obtained by
police incident to an unconstitutional seizure and search of his
person. Finding no error, we affirm the convictions.
The parties are fully conversant with the record, and this
memorandum opinion recites only those facts necessary to a
disposition of the appeal.
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
I.
"In reviewing a trial court's denial of a motion to suppress,
'the burden is upon the defendant to show that the 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). "Ultimate questions of reasonable suspicion and
probable cause to make a warrantless search" involve issues of
both law and fact, reviewable de novo on appeal. Ornelas v.
United States, 517 U.S. 690, 699, 116 S. Ct. 1657 (1996). "[I]n
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, 25 Va. App. at 198, 487 S.E.2d at
261.
At the pretrial hearing on defendant's motion to suppress
evidence of the offending drugs, Richmond Police Officer Peter A.
Capelli, III, testified he "received a page that . . . a black
male wearing a green and white jacket with blue pants on by the
name of Twan . . . was holding an amount of cocaine in his groin."
Capelli, accompanied by two officers, responded to the reported
location in a police vehicle, arriving within thirty seconds of
the message. Capelli immediately observed a man, later identified
as defendant, matching the description, "walking down the street,"
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"about to light up" a "cigar wrapper in his right hand." As the
trio of officers "pulled up," defendant quickly placed the "cigar"
"into a tube" held in his left hand.
Capelli, a police officer trained and experienced in the
"drug trade," "believe[d]" the "cigar wrapper" was marijuana,
"knew exactly what it was," explaining, "you don't see a rolled
brown wrapper unless it's going to be marijuana[,] . . . people
take the tobacco out of the cigar . . . put marijuana in it, roll
it back up and smoke it." He had "viewed many people that use
marijuana in that fashion and that is a known reason for that."
Capelli "asked" defendant his name through the car window and, as
defendant answered, Capelli exited the vehicle and requested, "can
I see the tube?" In response, defendant surrendered it to Capelli
and he confirmed the "cigar wrapper" contained marijuana. Capelli
then arrested defendant for possession of the drug, and an
incidental search of his person revealed the offending cocaine.
In denying defendant's motion, the trial court expressly
found that "[t]he officer saw a hand rolled marijuana cigar[,]
which he recognized. . . . This is a situation where an officer
in fact saw what he had reason to believe based on his knowledge
and experience and training was an illegal substance."
Defendant was thereafter convicted of the subject offenses,
resulting in the instant appeal.
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II.
Although the trial judge apparently treated the instant
police/citizen encounter as a Terry stop, we regard the seizure of
defendant as an arrest and review the circumstances accordingly. 1
"As a general rule of constitutional law, an officer properly
may make a warrantless arrest if he has probable cause to believe
the arrestee has committed a crime, and the officer may search the
individual incident to that lawful arrest." Lovelace v.
Commonwealth, 27 Va. App. 575, 582, 500 S.E.2d 267, 271 (1998)
(internal citations omitted). "To establish probable cause, the
Commonwealth must show 'a probability or substantial chance of
criminal activity, not an actual showing' that a crime was
committed." Ford v. City of Newport News, 23 Va. App. 137, 143-
44, 474 S.E.2d 848, 851 (1996) (citation omitted).
"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 purpose of
crime control." Powell v. Commonwealth, 27 Va. App. 173, 176-77,
497 S.E.2d 899, 900 (1998) (citation omitted). "'So long as
probable cause to arrest exists at the time of the search, . . .
it is unimportant that the search preceded the formal arrest if
the arrest followed quickly on the heels of the challenged
1
"An appellate court may affirm the judgment of a trial
court when it has reached the right result for the wrong
reason." Driscoll v. Com., 14 Va. App. 449, 452, 417 S.E.2d
312, 313 (1992).
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search.'" Ross v. Commonwealth, ___ Va. App. ___, ___, ___ S.E.2d
___, ___ (2001) (citation omitted).
Here, when first observed by Capelli, defendant was "about to
light up" a "cigar wrapper," but "into the tube it went" with the
approach of police. However, before defendant concealed the
"wrapper," Capelli identified the item as a cigar modified for the
smoking of marijuana. Such circumstances were clearly sufficient
to provide probable cause to believe defendant then possessed
marijuana, justifying an immediate warrantless arrest and related
search.
Accordingly, evidence of the offending drugs was the product
of a lawful seizure and search, and we affirm the convictions.
Affirmed.
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