Quinshawn P. Ross, s/k/a, etc v Commonwealth of VA

COURT OF APPEALS OF VIRGINIA
Present: 	Judges Humphreys, Clements and Senior Judge Coleman
Argued at Richmond, Virginia
QUINSHAWN P. ROSS, S/K/A
QUINSHAWN PERNELL ROSS
OPINION BY
v. 	Record No. 0666-00-2 	JUDGE SAM W. COLEMAN III
MARCH 13, 2001
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
James B. Wilkinson, Judge
Douglas A. Ramseur (Bowen, Bryant,
Champlin & Carr, on brief), for appellant.
Eugene Murphy, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Quinshawn P. Ross was convicted in a bench trial of
possession of cocaine with intent to distribute. 	The sole issue
on appeal is whether the trial court erred by denying Ross' motion
to suppress. 	Finding no error, we affirm.
BACKGROUND
At approximately 5:00 p.m., Richmond Sheriff's Deputy Mark
Ingram was sitting in his patrol vehicle at a traffic intersection
in a high crime area. 	While running a warrant check on an
unrelated matter, Ingram observed Ross approach the passenger side
of a vehicle that had stopped at the intersection. 	As Ross
approached the vehicle, he removed a plastic baggie from the
waistband of his shorts. 	Ross gave the passenger an object from

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the baggie, and in exchange, the passenger handed Ross money.
Believing that he just observed a hand-to-hand drug transaction,
Ingram approached Ross and searched him. 	Ingram found sixteen
rocks of crack cocaine, packaged in individual baggie corners
located in a larger plastic baggie, and $110 in currency inside
Ross' shorts.
ANALYSIS
When we review a trial court's denial of a motion to
suppress, "[w]e view the evidence in a light most favorable to
. . . the prevailing party below, and we grant all reasonable
inferences fairly deducible from that evidence." 	Commonwealth
v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).
"[W]e are bound by the trial court's findings of historical fact
unless 'plainly wrong' or without evidence to support them."
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 (1996)). 	"However, we consider de novo whether those facts
implicate the Fourth Amendment and, if so, whether the officers
unlawfully infringed upon an area protected by the Fourth
Amendment." 	Hughes v. Commonwealth, 31 Va. App. 447, 454, 524
S.E.2d 155, 159 (2000) (en banc) (citing McGee, 25 Va. App. at
198, 487 S.E.2d at 261).
"A warrantless search is per se unreasonable and violative
of the Fourth Amendment of the United States Constitution,

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subject to certain exceptions." 	Tipton v. Commonwealth, 18 Va.
App. 370, 373, 444 S.E.2d 1, 3 (1994). 	A search made by a law
enforcement officer pursuant to a lawful custodial arrest,
which, of course, must be based on probable cause, is a well
recognized exception to the warrant requirement. 	United States
v. Robinson, 414 U.S. 218, 235 (1973).
It is the fact of the lawful arrest which
establishes the authority to search . . .
[and] in the case of a lawful custodial
arrest a full search of the person is not
only an exception to the warrant requirement
of the Fourth Amendment, but is also a
"reasonable" search under that Amendment.
Id.; see also 2 Wayne R. LaFave, Search and Seizure § 4.5(e), at
543-44 (3d ed. 1996) (noting that "[i]f there is probable cause
to believe that a certain individual has on his person the
evidence, fruits, or instrumentalities of crime, it would be an
unusual case in which there was not also probable cause to
believe that this individual was a participant in the criminal
activity under investigation" such that "the more usual
procedure is simply to arrest that person and then search him
incident to the arrest" rather than first obtaining a search
warrant for his person).

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The dispositive issue is whether Ingram had probable cause
to arrest Ross.1 "'[T]he test of constitutional validity [of a
warrantless arrest] 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.'" 	DePriest v. Commonwealth, 4 Va.
App. 577, 583-84, 359 S.E.2d 540, 543 (1987) (quoting Bryson v.
Commonwealth, 211 Va. 85, 86-87, 175 S.E.2d 248, 250 (1970));
accord Michigan v. DeFillippo, 443 U.S. 31, 37 (1979). 	"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 purposes of crime
control." 	Washington v. Commonwealth, 219 Va. 857, 862, 252
S.E.2d 326, 329 (1979) (internal quotation and citation
omitted). 	"To establish probable cause, the Commonwealth must
1 The Commonwealth argues, and the defendant concedes, that
Ingram had reasonable suspicion that criminal activity was
afoot, sufficient to justify a Terry stop. 	The Commonwealth
further asserts that drugs were found in a lawful pat-down for
weapons. 	We disagree and find that the search of Ross exceeded
that which is permissible under Terry and, therefore, the search
must be supported by probable cause. 	Terry v. Ohio, 392 U.S. 1,
29 (1968) (holding that a pat-down or a search for weapons must
"be confined in scope to an intrusion reasonably designed to
discover guns, knives, clubs, or other hidden instruments for
the assault of the police officer"). 	Because the search was a
generalized search for drugs and was not a frisk for weapons
based on a concern for officer safety, Ingram must have had
probable cause to believe that Ross possessed drugs in order to
justify the warrantless search.

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show 'a probability or substantial chance of criminal activity,
not an actual showing of such activity.'" 	Ford v. City of
Newport News, 23 Va. App. 137, 143-44, 474 S.E.2d 848, 851
(1996) (citations omitted); accord DeFillippo, 443 U.S. at 36
("The validity of the arrest does not depend on whether the
suspect actually committed a crime."). 	"Probable cause to
arrest must exist exclusive of the incident search. 	[However,]
[s]o 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 search." 	Carter v. Commonwealth, 9 Va. App. 310,
312, 387 S.E.2d 505, 506-07 (1990) (internal quotations and
citations omitted).
We hold that, based on the totality of circumstances,
Ingram had probable cause to arrest Ross for possession of a
controlled substance, thereby justifying a full search of his
person. 	Ingram observed Ross, in a high-crime area known for
drug activity, take a plastic baggie from the waistband of his
shorts and approach a vehicle that had stopped at the
intersection. 	The vehicle was stopped just long enough for Ross
to hand an object from the baggie to the passenger in exchange
for currency. 	"If an officer has reason to believe that a
person is committing a felony in his presence by possessing
contraband or a controlled substance, the officer has probable

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cause to arrest the individual without a warrant." 	Buck v.
Commonwealth, 20 Va. App. 298, 304, 456 S.E.2d 534, 536-37
(1995).
Ingram had reason to believe he had witnessed Ross conduct
a hand-to-hand drug transaction with the passenger of the
vehicle. 	Ross handed an unidentified object to the occupant of
a vehicle that had stopped at an intersection. 	In return, the
occupant of the vehicle handed Ross some money. 	Standing alone,
Ingram's observation of the exchange of an unidentified item for
money may not have given rise to probable cause. 	See generally
LaFave, supra § 3.6(b), at 299-301. 	However, Ingram had also
observed Ross remove a plastic baggie from inside his shorts and
then remove the object from the plastic baggie. 	Plastic baggies
are commonly used to store drugs. 	Under the totality of those
circumstances, we hold that Ingram had probable cause to arrest
Ross. 	See generally In re J.D.R., 637 A.2d 849 (D.C. 1994)
(finding probable cause to arrest where police officer, after
making a lawful traffic stop, observed a corner of a plastic
baggie protruding from the defendant's cast and, after the
officer requested to see the baggie, defendant attempted to hide
it); Blanding v. State, 446 So.2d 1135, 1137 (Fla. Dist. Ct.
App. 1984) (per curiam) (noting that plastic bags are commonly
used as containers for drugs); People v. McRay, 416 N.E.2d 1015,
1018-20 (N.Y. 1980) (recognizing that a glassine envelope is a

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"telltale sign of heroin" and that the passing of a glassine
envelope signals an illicit drug transaction rather than some
innocuous act). 	The fact that Ingram did not see and could not
identify the item that Ross removed from the baggie does not
preclude a finding of probable cause under these circumstances.
See State v. Martin, 956 P.2d 956, 958-59 (Or. 1998) (finding
probable cause to arrest where officer, who was stopped at an
intersection at 11:00 p.m. in a known drug area, observed
through the rear window of the vehicle in front of him, the
defendant approach the vehicle, after being signaled by the
passenger, and put his head and one hand in the vehicle for a
few seconds; the officer did not observe any objects or money
exchanged); People v. Jones, 683 N.E.2d 14, 15 (N.Y. 1997)
(finding that fact that officer did not observe item that was
exchanged for money was not dispositive where officer was
experienced and he observed the activity occur in a drug-prone
area, the manner in which the exchange was conducted, and the
defendant hide a plastic bag immediately after the exchange).
The fact that money was exchanged for an item removed from a
plastic baggie that had been secreted inside Ross' shorts
provides additional support for our finding of probable cause.
See also McRay, 416 N.E.2d at 1020 (stating that "probable cause
almost surely would exist" if money is passed in exchange for an
object in a container commonly associated with drugs);

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Commonwealth v. Santaliz, 596 N.E.2d 337, 339-40 (Mass. 1992)
(articulating four factors which tend to establish probable
cause, including the "unusual nature of the transaction" which,
in that case, was the defendant approaching a taxicab that just
stopped and exchanging an object with the passenger for money);
Blanding, 446 So.2d at 1137 (finding that exchanging cash for
unseen substance in plastic bag is a factor in determining
probable cause to arrest). 	Finally, the exchange occurred in a
high crime area with a high incidence of drug activity and the
observed activity was suspicious and furtive. 	See Santaliz, 596
N.E.2d at 339-40 (characterizing as furtive the defendant
removing the object from his companion's waistband and
conducting the exchange with the passenger in silence).
Although Ingram had no drug training and had never served on a
drug task force, he was a five and one-half year veteran of the
sheriff's department who had made approximately six drug-related
arrests. 	See LaFave, supra § 3.2(c). 	Accordingly, based on the
totality of the circumstances, we find that Ingram had probable
cause to arrest Ross for possessing drugs with the intent to
distribute.
We affirm the trial court's denial of Ross' motion to
suppress and, therefore, affirm the conviction.
Affirmed.