Commonwealth v. Brown – July 21, 2009

The Commonwealth contends the CAV erred in reversing Brown’s conviction on a basis not argued on appeal. The CAV concluded the trial court erred in denying Brown’s motion to suppress, finding that while the officer had reasonable suspicion to detain Brown, he did not have probable cause to arrest him for possessing cocaine.

After receiving a tip that two individuals were selling drugs in an area in which the he had previously made several narcotics distribution arrests, the officer found Brown, described by the officer as a “known narcotics dealer,” standing near another man on a pedestrian bridge. The officer observed Brown holding an open container of alcohol and the other man urinating on the bridge. After Brown made a furtive gesture, the officer handcuffed and frisked him and the other man. He found ashes in a folded lottery slip in the second man’s pocket, and remembered having seen a similarly folded lottery slip on the pedestrian bridge where the men had been standing. The officer recovered that folded lottery slip, and found cocaine in the fold. He arrested Brown for possession of cocaine.

From
The Court of Appeals of Virginia (unpublished decision)

Counsel
William C. Mims and Virginia B. Theisen (Office of the Attorney General) for appellant.

Paul F. Fantl for appellee.

Assignments of Error
1. The Court of Appeals erred in reversing the circuit court’s judgment on a basis not argued on appeal.

2. The Court of Appeals erred in ruling that the police lacked probable cause to arrest Brown for possession of the cocaine found in the folded lottery slip on the ground.

Date Granted
7-20-2009