Jarrod O'Brian Farmer v Commonwealth

COURT OF APPEALS OF VIRGINIA
Present: 	Chief Judge Moon, Senior Judges Cole and Hodges
JARROD O'BRIAN FARMER
v. 	Record No. 1641-94-3 	OPINION BY
CHIEF JUDGE NORMAN K. MOON
COMMONWEALTH OF VIRGINIA 	OCTOBER 3, 1995
FROM THE CIRCUIT COURT OF THE CITY OF LYNCHBURG
Richard S. Miller, Judge
William Parker Walker, Senior Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.
H. Elizabeth Shaffer, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on brief),
for appellee.
Jarrod O'Brian Farmer appeals his conviction for possession
of cocaine, arguing that probable cause did not exist to support
his arrest and search for the cocaine. 	We disagree and affirm
the conviction.
Officer R.D. Carson received a dispatch that an
unidentified citizen had reported that she suspected a black
male, wearing a camouflage jacket and jeans, was selling drugs in
the 2800 block of Loraine Street. 	The citizen reported that the
individual had flagged down several cars, would spend a short
time at them, and then return to the sidewalk. 	Carson knew the
area to be one of the prime illicit drug distribution sites in
the City of Lynchburg and one where he had participated in drug
seizures. 	He also knew that other drug and firearm arrests had
been made there during the preceding year.
When Carson arrived at the address five minutes later, he

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saw Farmer dressed exactly as the citizen had described and
standing at the passenger side of a pickup stopped on Loraine
Street facing toward Front Street. 	Carson knew from his own
undercover experience that drug distributors frequently approach
their customers in this manner.
Farmer looked up from the pickup, saw Officer Carson's
marked police cruiser, and turned and walked away down Front
Street. 	The pickup backed up and proceeded down Loraine Street.
Carson followed Farmer. 	As Farmer was cutting through a yard,
Carson yelled to Farmer and asked him to approach the cruiser.
At that point, Farmer turned, looked at Carson, and ran. 	Carson
chased Farmer and called for assistance. 	Officer Williams joined
in the pursuit. 	The record does not reveal the exact route or
distance Farmer ran. 	However, it shows that as he ran, he jumped
a fence. 	At one point he appeared to be reaching into his
pockets as if to get rid of something. 	Farmer ran toward High
Street onto the rear porch of a residence and attempted but was
unable to enter the house. 	He then ran to the front of the house
on High Street, along Front Street into a wooded area, and along
a creek. 	There, Williams caught up with Farmer and tackled him.
Carson arrived just as Williams tackled Farmer. 	The officers
searched Farmer and found a plastic "corner" containing what
appeared to be two pieces of cocaine, and an amber tube
containing cocaine residue. 	Farmer was arrested and charged with
possession of cocaine and hindering a police officer in the
performance of his duties in violation of a city ordinance.

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The question is whether the police had the right to subdue
and search Farmer when they caught up with him. 	We begin by
noting that when Officer Carson requested that Farmer approach
his vehicle, Farmer's Fourth Amendment rights were not violated.
See Baldwin v. Commonwealth, 243 Va. 191, 198, 413 S.E.2d 645,
648-49 (1992) (police officer flashing his cruiser's floodlight
on person and demanding person approach the police officer
involved no Fourth Amendment implications). 	Not until Farmer was
subdued was the Fourth Amendment implicated. 	California v.
Hodari D., 499 U.S. 621 (1991) (holding seizure does not occur
until suspect submits to lawful show of authority); Woodson v.
Commonwealth, 245 Va. 401, 429 S.E.2d 27 (1993).
Appellant would have us focus on the information provided in
the citizen complaint. 	He contends the police did not have
articulable suspicion or probable cause to investigate based
solely on a citizen complaint. 	Wright v. Commonwealth, 222 Va.
188, 278 S.E.2d 849 (1981). 	However, whether the citizen
complaint and Carson's initial observations of Farmer justified
the police stopping and frisking or seizing Farmer was mooted by
Farmer's flight. 	No seizure occurred until Farmer was physically
subdued by the officers. 	See Hodari D., 499 U.S. at 624. 	Thus,
we start the inquiry at the point Farmer was seized.
In making a probable cause determination, "the task . . . is
simply to make a practical, common sense decision whether, given
all the circumstances . . ., there is a fair probability that
contraband or evidence of a crime will be found in a particular

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place." 	Illinois v. Gates, 462 U.S. 213, 238 (1983). 	As a
general rule, "subject only to a few specifically established and
well-delineated exceptions," warrantless searches are
presumptively unreasonable. 	Horton v. California, 496 U.S. 128,
133 & n.4 (1990). 	However, searches conducted incident to a
lawful arrest are exempt from the warrant requirement. 	Chimel v.
California, 395 U.S. 752, 759 (1969).
Before Farmer was seized, Carson saw Farmer more than five
minutes after the complaint in a drug market area engaging in an
activity which, although innocent in itself, was consistent with
selling drugs. 	Carson's observations and the citizen's complaint
that a person dressed as Farmer and acting consistent with the
report of the person flagging down cars and approaching them for
a few minutes were sufficient to afford Carson reasonable
suspicion of drug distribution. 	Also, the fact that Farmer
looked up from the pickup, saw the police cruiser, abruptly ended
his contact at the pickup, and walked away would give Carson
additional reason to suspect that Farmer was involved in illicit
drug sales.
When Farmer fled, the officer had further reason to believe
Farmer was engaged in criminal activity. 	See Langhorne v.
Commonwealth, 13 Va. App. 97, 409 S.E.2d 476 (1991). 	Farmer's
flight took on a desperate air when he jumped a fence, tried and
failed to enter a residence, proceeded along several streets, and
fled into the woods and along a creek before being caught.
During his flight, Farmer attempted to reach into his pockets as

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if to dispose of something.
Given the circumstances, we hold there was a "fair
probability that contraband or evidence of a [drug related] crime
[would] be found . . . [on Farmer]." 	Gates, 462 U.S. at 238.
Thus, when Farmer's Fourth Amendment rights were implicated,
Carson had probable cause to believe that Farmer was engaged in
selling drugs and had in his possession evidence of the crime.
Where, as here, the product of the search is not essential
to establish probable cause to arrest and "the formal arrest
followed quickly on the heels of the challenged search of [the
defendant's] person," it is not "particularly important that the
search preceded the arrest rather than vice versa." 	Rawlings v.
Kentucky, 448 U.S. 98, 111 (1980). 	The exigencies of the
situation justified the seizure of Farmer as well as the seizure
of the drugs. 	Thus, we hold the cocaine was found during a
lawful search, and the trial judge did not err in refusing to
suppress the evidence.
Affirmed.