Jose Cristobal Perlamadrid v. Commonwealth of Virginia ( 2024 )

COURT OF APPEALS OF VIRGINIA
UNPUBLISHED
Present: Judges Athey, White and Frucci
Argued at Lexington, Virginia
JOSE CRISTOBAL PERLAMADRID
MEMORANDUM OPINION* BY
v. Record No. 2176-23-3 JUDGE STEVEN C. FRUCCI
NOVEMBER 6, 2024
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF ROCKINGHAM COUNTY
Bruce D. Albertson, Judge
Robert O. Wilson (Wilson Law PLC, on brief), for appellant.
Ken J. Baldassari, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
Based on a conditional guilty plea, Jose Cristobal Perlamadrid was convicted of felony
possession of a Schedule I or II controlled substance. On appeal, Perlamadrid challenges the circuit
court’s denial of his motion to suppress and finding that the information obtained from a consensual
pat down of Perlamadrid provided probable cause to search his pockets. For the following reasons,
we affirm the circuit court’s judgment.
*
This opinion is not designated for publication. See Code § 17.1-413(A).
I. BACKGROUND1
On March 4, 2023, Officer Simpson of the City of Harrisonburg Police responded to a
report of a male “acting aggressive, throwing things around, yelling in the parking lot next to a
red truck close to the dumpsters.” When Officer Simpson arrived at the location, he saw “a male
who appeared to be struggling to put on a dark hoodie next to a red truck in the parking lot.” The
male was later identified as Perlamadrid.
Officer Simpson observed Perlamadrid “walking back and forth almost in circles, bent
over and . . . trying to . . . jerk down the waist area of [the] dark hoodie that he was putting on.”
Officer Simpson called out to Perlamadrid, who immediately walked over to the officer.
Perlamadrid “kept running his hands through his hair, looking all around” and “had very wide
eyes that were glassy.” Officer Simpson asked Perlamadrid if he was okay, and Perlamadrid
indicated that he was and that he “was trying to move things into his friend’s apartment.”
Perlamadrid identified the red truck as his, and Officer Simpson observed a butane lighter inside
the vehicle. Officer Simpson administered the vertical gaze nystagmus test and asked
Perlamadrid if he had been drinking earlier. Though he initially denied drinking, Perlamadrid
did eventually state he had a drink a few hours previously. In part due to Perlamadrid’s “actions
. . . , some of the statements that he had made, the trailing thoughts, the erratic movements, the
1
On appeal from the denial of a motion to suppress evidence, we “review[] the evidence in
the light most favorable to the Commonwealth, as the prevailing party below.” Bagley v.
Commonwealth, 73 Va. App. 1, 8 n.1 (2021). Doing so requires us to “discard the evidence of the
accused in conflict with that of the Commonwealth, and regard as true all the credible evidence
favorable to the Commonwealth and all fair inferences to be drawn therefrom.” Commonwealth
v. Cady, 300 Va. 325, 329 (2021) (quoting Commonwealth v. Perkins, 295 Va. 323, 324 (2018)).
Therefore, the Court does not include within this background any evidence of the accused in
conflict with that of the Commonwealth.
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continually scratching his head, the butane lighter,”2 and the results of the vertical gaze
nystagmus in Perlamadrid’s eyes, Officer Simpson asked if he could pat down Perlamadrid’s
person. Perlamadrid consented to the pat down. Officer Simpson moved behind Perlamadrid
and “conducted a brief just patting motion with [Officer Simpson’s] fingers outstretched on the
outside of [Perlamadrid’s] lower jacket where his jacket pockets were and then down towards his
trouser pockets.”
Officer Simpson felt a round, golf ball-like shape with a “hard stem about the thickness
of a pencil” in Perlamadrid’s left trouser pocket. At the suppression hearing, Officer Simpson
testified that it was “immediately apparent” to him that the object was a “glass smoking device
commonly used for smoking illegal narcotics.” Using his prior experience and knowledge3 and
the feel of the item, Officer Simpson testified that he recognized the shape and the outline of the
item as “conducive” with a “meth bubble,” an item he testified was commonly used to “smok[e]
illegal narcotics such as meth[amphetamine], cocaine, [and] crack.” Officer Simpson then
removed the item from Perlamadrid’s pocket. Officer Simpson tested the residue on the item
therein using a field test kit, which resulted in a positive test for methamphetamine. Perlamadrid
was subsequently arrested and charged with possession of a Schedule I or II controlled
substance.
2
At the suppression hearing, Officer Simpson testified that “butane lighters are often
used to light things or heat things up, which include cigarettes, cigars, [and] smoking devices”
and that he “commonly see[s] them accompanying glass smoking devices and other things to
smoke illegal narcotics.”
3
At the suppression hearing, Officer Simpson testified that his experience included: (1)
having three years of law enforcement experience; (2) completing a basic drug recognition
course and “many trainings involving criminal and narcotic interdiction”; (3) “encounter[ing]
illegal narcotics and paraphernalia on the streets of Harrisonburg”; and (4) being involved with
“[w]ell over a hundred” cases “involv[ing] drug paraphernalia” and “[w]ell over a hundred”
cases “involv[ing] a smoking device.”
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Perlamadrid moved to suppress the evidence obtained from Officer Simpson removing
the item from Perlamadrid’s pocket, arguing that the plain feel doctrine required that, for
probable cause to exist to search a pocket following a pat down, the character of the item must
have been “immediately apparent” to the law enforcement officer. He further argued that in
order to be “immediately apparent,” the officer had to be able to tell that the item was used for
illegal purposes by “sensory perception alone” and not from considering the officer’s “training
and experience.” The circuit court denied the motion to suppress, finding that “[t]he officer
immediately recognized the object as a meth bubble by feel.” The circuit court further found
“that a meth bubble has a distinct shape and feel and is only used for illegal narcotics” and that
“[t]he totality of the circumstances, including the feel of the item and the officer’s observations
of [Perlamadrid], gave the officer probable cause to seize the item as evidence of a crime.”
Following, Perlamadrid entered a conditional plea of guilty to felony possession of a
Schedule I or II controlled substance that preserved his right to appeal the denial of the motion to
suppress. This appeal followed.
II. ANALYSIS
“On review of the trial court’s denial of a motion to suppress, an ‘appellant bears the burden
of establishing that reversible error occurred.’” Moreno v. Commonwealth, 73 Va. App. 267, 274
(2021) (quoting Williams v. Commonwealth, 71 Va. App. 462, 474 (2020)). We “examine[] the trial
court’s application of the law de novo, including its assessment of whether reasonable suspicion or
probable cause supported a search.” Bagley v. Commonwealth, 73 Va. App. 1, 13 (2021).
“However, we defer to the trial court’s ‘findings of historical fact,’ taking care to review them ‘only
for clear error and to give due weight to inferences drawn from those facts by resident judges and
local law enforcement officers.’” Id. (quoting Malbrough v. Commonwealth, 275 Va. 163, 169
(2008)).
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The Fourth Amendment of the United States Constitution does not “forbid[] . . . all searches
and seizures, but unreasonable searches and seizures.” Terry v. Ohio, 392 U.S. 1, 9 (1968) (quoting
Elkins v. United States, 364 U.S. 206, 222 (1960)); see U.S. Const. amend. IV. Thus, if
“articulable facts support[] a reasonable suspicion” of unlawful conduct, a police officer may,
without violating the Fourth Amendment, stop that person “briefly while attempting to obtain
additional information.” Sidney v. Commonwealth, 280 Va. 517, 524 (2010) (quoting Hayes v.
Florida, 470 U.S. 811, 816 (1985)). During an investigative stop, an officer may conduct a
limited “pat[-]down” search for safety purposes if the officer reasonably believes that a criminal
suspect may be armed and dangerous. Murphy v. Commonwealth, 264 Va. 568, 573-74 (2002).
The Supreme Court of the United States addressed the seizure of contraband detected by the
sense of touch during these pat-down searches in Minnesota v. Dickerson, 508 U.S. 366 (1993).
The Supreme Court of the United States stated:
If a police officer lawfully pats down a suspect’s outer clothing
and feels an object whose contour or mass makes its identity
immediately apparent, there has been no invasion of the suspect’s
privacy beyond that already authorized by the officer’s search for
weapons; if the object is contraband, its warrantless seizure would
be justified by the same practical considerations that inhere in the
plain-view context.
Id. at 375-76. “However, when the character of the item is not immediately apparent from the
[pat-down] search, and the officer does not reasonably suspect that the item is a weapon, further
search regarding the item is not allowed because such an evidentiary search is unrelated to the
justification for the frisk.” Murphy, 264 Va. at 574.
In the case at hand, it is uncontested that Perlamadrid consented to the pat down. As such,
our inquiry is limited to whether the officer conducting the pat down had sufficient probable cause
to seize an item suspected to be contraband. Contrary to Perlamadrid’s assertions, “whether a law
enforcement officer had sufficient probable cause to seize contraband from a person in the course
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of a Terry pat-down search requires a consideration of the totality of the circumstances
surrounding the search, as well as a consideration of the officer’s knowledge, training and
experience.” Cost v. Commonwealth, 275 Va. 246, 251 (2008). “An officer who conducts
a Terry pat-down search is justified in removing an item from a subject’s pocket if the officer
reasonably believes that the object might be a weapon.” Grandison v. Commonwealth, 274 Va.
316, 319 (2007). Furthermore, “the removal of an item from a subject’s pocket is also justified if
the officer can identify the object as suspicious under the ‘plain feel’ variation of the plain view
doctrine.” Id. at 320.
The “plain feel” doctrine comports with the traditional application
of the Fourth Amendment because, when the character of the
object felt by the officer is immediately apparent either as a
weapon or some form of contraband, the object is for all practical
purposes within the plain view of the officer.
Cost, 275 Va. at 252. Further, the Supreme Court of the United States has
explained that when the identity of the object is immediately
apparent to the officer conducting a legal pat-down search of a
suspect “there has been no invasion of the suspect’s privacy
beyond that already authorized by the officer’s search for weapons;
if the object is contraband, its warrantless seizure would be
justified by the same practical considerations that inhere in the
plain-view context.”
Id. (quoting Dickerson, 508 U.S. at 375-76). “However, an item may not be retrieved under the
plain view doctrine unless it is ‘immediately apparent’ to the officer that the item is evidence of a
crime.” Grandison, 274 Va. at 320. “It is not sufficient probable cause to seize an item from
inside the suspect’s clothing if the officer has no more than an educated ‘hunch’ based upon the
‘plain feel’ that the item might be contraband.” Cost, 275 Va. at 252.
As a result, courts have routinely suppressed evidence collected during a pat-down search
where the items had a facially legal purpose that prevented it from being immediately apparent
that the items were contraband. See, e.g., id. at 253-54 (finding that the capsules could serve a
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legal purpose, the “character of the capsules seized from [the defendant’s] pants pocket could not
have been immediately apparent to [the officer] as a result of the pat-down search,” the
defendant did not appear to attempt to hide the evidence and his “movements and his failure to
respond to the officer’s questions [merely] supported a well-educated ‘hunch,’ but were
insufficient to establish probable cause required to permit a warrantless seizure of the capsules”);
Murphy, 264 Va. at 571 (finding that the mere feel of a plastic bag does not make it immediately
apparent that the item was contraband, even when executing a “search warrant [that] authorized
the police to search ‘the entire residence’ for ‘marijuana, cocaine, cocaine base, heroin, scales,
ledgers, logs, money, guns, phone bills, syringes and any other item that would be connected
with the illegal sale and/or use of any other illegal narcotic or non-prescription drug’”); Harris v.
Commonwealth, 241 Va. 146 (1991) (finding no probable cause to search for drugs existed
because the officer discovered a facially innocent film canister and he had no particularized
knowledge that it contained drugs or that drugs are commonly secreted in such containers).
The case at hand, however, deals with an item, a “meth bubble,” that the officer instantly
recognized and knew to have the purpose of “smoking illegal narcotics such as
meth[amphetamine], cocaine, [and] crack.” As drug paraphernalia without a facially apparent
legal use, it is distinguishable from evidence that can serve a legal purpose as well as a common
illegal one. Therefore, it is directly comparable to cases such as Camden v. Commonwealth, 17
Va. App. 725 (1994).4 In Camden, the defendant consented to a pat down which resulted in an
officer feeling a pipe that his knowledge and past experience allowed him to immediately
4
See also Commonwealth v. Gay, No. 0131-01-1, slip op. at 3, 2001 Va. App. LEXIS
333, at *3-5 (June 11, 2001) (finding that where “[t]he officer immediately identified the object
as a crack pipe, which the defendant concede[d] has no use except to consume crack cocaine
. . . [,] [i]t was drug paraphernalia . . . [that was] subject to seizure and confiscation”).
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recognize as a device used to smoke marijuana.5 Id. at 728. The “characteristics of [a] pipe and
[the officer’s] knowledge that such a device was used to smoke marijuana provided the officers
with a reasonable basis to believe that [the defendant] possessed drugs.” Id. As a result, this
Court found that “the officers [had] probable cause to search him for drugs.” Id. (determining
that “[t]he fact that the pipe was of the type used for smoking marijuana distinguishe[d] [the]
case from the situation in Harris[, 241 Va. 146,] in which no probable cause to search for drugs
existed”). Similarly, in the case at hand, the characteristics of the item and the officer’s
knowledge that such an item is commonly used to smoke illegal narcotics made it immediately
identifiable as a narcotic smoking device. Additionally, looking at the totality of the
circumstances, the record also supports there being evidence of narcotic use from Perlamadrid’s
“actions . . . , some of the statements that he had made, the trailing thoughts, the erratic
movements, the continually scratching his head,” and the results of the vertical gaze nystagmus
in Perlamadrid’s eyes.6 As a result, Officer Simpson had sufficient probable cause to seize an
item suspected to be contraband and the circuit court did not err in denying the motion to suppress.
III. CONCLUSION
For the foregoing reasons, the circuit court’s judgment is affirmed.
Affirmed.
5
Possession of marijuana was illegal in the Commonwealth of Virginia at the time of
Camden.
6
Perlamadrid argues that the Commonwealth must prove the officer could tell from the
sense of touch during the pat-down search that the item had been used for an illegal purpose.
The officer is not required to know beyond a reasonable doubt that the item is contraband, but
rather probable cause must exist to allow the search. See Cost, 275 Va. at 251. “Probable
cause ‘is not a high bar.’” District of Columbia v. Wesby, 583 U.S. 48, 57 (2018) (quoting Kaley
v. United States, 571 U.S. 320, 338 (2014)). It “requires only a probability or substantial chance
of criminal activity, not an actual showing of such activity.” Id. (quoting Illinois v. Gates, 462
U.S. 213, 243 n.13 (1983)). It is not necessary that “the officer must be possessed of near
certainty as to the seizable nature of the items.” Texas v. Brown, 460 U.S. 730, 741 (1983).
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