Opinion
Record No. 1583-93-4
Decided: January 3, 1995
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY, Richard J. Jamborsky, Judge
Laurence J. Tracy for appellant.
Robert B. Condon, Assistant Attorney General (James S. Gilmore, III, Attorney General, on brief), for appellee.
Present: Judges Barrow, Koontz and Fitzpatrick
Pursuant to Code Sec. 17-116.010 this opinion is not designated for publication.
In this appeal of convictions for distribution and possession with intent to distribute cocaine, we hold that (1) the officer had probable cause to arrest the defendant; and (2) the evidence supports the convictions.
1. Suppression
We will not disturb a trial court's refusal to suppress evidence seized in a warrantless search unless the holding is plainly wrong or unsupported by the evidence, when viewed in the light most favorable to the Commonwealth. Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).
A warrantless arrest is constitutionally permissible if "at the moment of arrest, the arresting officer [has] knowledge of sufficient facts and circumstances" to justify a reasonable belief that an offense has been committed. Bryson v. Commonwealth, 211 Va. 85, 86, 175 S.E.2d 248, 250 (1970). "Probable cause" is more than "mere suspicion." DePriest v. Commonwealth, 4 Va. App. 577, 585, 359 S.E.2d 540, 544 (1987). "Probable cause . . . deals with probabilities, . . . factual and practical considerations in every day life on which reasonable and prudent [persons], not legal technicians, act." Derr v. Commonwealth, 242 Va. 413, 421, 410 S.E.2d 662, 666 (1991). In assessing whether probable cause existed, we analyze what all the circumstances would signify to a trained police officer. See DePriest, 4 Va. App. at 585, 359 S.E.2d at 543.
In this case, the surveillance officer was in a known drug area. He knew from listening to the transmissions from the undercover officer's microphone that the undercover officer and his companion had entered a "crack house." Further, having received the arrest signal, he knew that a drug buy had taken place, and he had been alerted to look for a black man leaving the building. Shortly after the alert, the surveillance officer saw the defendant, a black man, stepping off the sidewalk area in front of the building. When the defendant saw the officer running toward him, the defendant made a throwing motion. These facts, taken together, provided the officer with probable cause to believe that the defendant had committed a crime. Therefore, the trial court properly admitted the pager and money seized from the defendant and the cocaine found nearby.
2. Sufficiency of the Evidence
On review for the sufficiency of the evidence, we view the evidence and all reasonable inferences therefrom in the light most favorable to the Commonwealth, and we will not disturb the jury's verdict unless plainly wrong or unsupported by the evidence. Maynard v. Commonwealth, 11 Va. App. 437, 439, 399 S.E.2d 635, 637 (1990) (en banc). Credibility determinations are the province of the jury. Mullis v. Commonwealth, 3 Va. App. 564, 571, 351 S.E.2d 919, 923 (1987).
Circumstantial evidence alone can sustain a conviction. Johnson v. Commonwealth, 2 Va. App. 598, 604-05, 347 S.E.2d 163, 167 (1986). However, the circumstances proved must exclude every reasonable hypothesis of innocence. McGee v. Commonwealth, 4 Va. App. 317, 322, 357 S.E.2d 738, 740 (1987). Possession of a quantity of drugs greater than that ordinarily possessed for personal use can prove intent to distribute. Hunter v. Commonwealth, 213 Va. 569, 570, 193 S.E.2d 779, 780 (1983).
Intent to Distribute
Upon searching the area where the defendant had thrown an object, the officer found a plastic bag containing thirty-six individually wrapped packets of crack cocaine. A search of the defendant revealed a pager and $478 cash, including the $40 the undercover officer had used to buy cocaine. An officer testified about the packaging of cocaine and the amount used for personal consumption. He also testified that sellers often use a pager and carry large amounts of cash. Further, the evidence that the defendant had sold cocaine to the undercover officer's companion supports the inference that he intended to distribute the remaining packets of cocaine. This evidence supports the defendant's conviction for possession of cocaine with intent to distribute.
Distribution of Cocaine
The undercover officer entered the "crack house" and saw the defendant coming out of the bathroom with a woman who carried a device used in smoking crack cocaine. The defendant looked at the officer, said he had "changed [his] mind," and left the apartment. The officer gave his companion $40, and the companion followed the defendant, returning immediately with two packets of crack cocaine. A minute later the defendant was stepping off the sidewalk in front of the building. In his pocket was a pager and $478, including the $40 the undercover officer used to buy the drugs. In addition, the defendant threw a bag containing thirty-six packets of cocaine similar to those purchased by the undercover officer. This evidence supports the defendant's conviction for distribution of cocaine.
Accordingly, we affirm the convictions.
Affirmed.