COURT OF APPEALS OF VIRGINIA

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COURT OF APPEALS OF VIRGINIA

Present: Judges Baker, Willis and Bray
Argued at Norfolk, Virginia

RANDOLPH BEALE, JR., S/K/A
RANDOLPH W. BEALE
MEMORANDUM OPINION BY
v. Record No. 1412-96-1 JUDGE JERE M. H. WILLIS, JR.
APRIL 1, 1997
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
Kenneth N. Whitehurst, Jr., Judge

Melinda R. Glaubke, Senior Assistant Public
Defender (Office of the Public Defender, on
brief), for appellant.

Marla Graff Decker, Assistant Attorney
General (James S. Gilmore, III, Attorney
General, on brief), for appellee.

Randolph Beale, Jr. was convicted by a jury of assault and
battery of a police officer and possession of cocaine. On
appeal, he contends that the trial court erred in denying his
motion to suppress the evidence. We find no error and affirm the
judgment of the trial court.
In an appeal of a ruling on a motion to suppress, the
appellant has the burden to demonstrate that, viewing the
evidence in the light most favorable to the Commonwealth, the
trial court's decision constituted reversible error. Fore v.
Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731 (1980). As
a general matter, determinations of reasonable suspicion and
probable cause are reviewed de novo; however, we review the trial
court's findings of historical fact only for clear error, and
impart due weight to inferences derived from those facts by
resident judges and local law enforcement officials. James v.
Commonwealth, 22 Va. App. 740, 743, 473 S.E.2d 90, 91 (1996)
(citing Ornelas v. United States, 116 S. Ct. 1657 (1996)).
In the early morning hours of July 3, 1995, Officer Sean
Coerse was dispatched in a marked police vehicle to investigate
reports that a white male was attempting to buy drugs in the 700
block of 16th Street in Virginia Beach. When Coerse arrived, he
observed Beale standing in the middle of the street, and leaning
into the window of a stopped vehicle. The car drove away, and
Beale walked off. Coerse stopped his police car near Beale and
asked whether "he had a minute." Beale approached, leaned into
the police car, and asked "what was up."
Coerse got out of his car, and told Beale that he was
investigating suspected narcotics activity. Beale said that had
"nothing to with him." Coerse asked Beale whether he had been
arrested for any weapon or drug violations. Beale admitted
having been arrested for cocaine possession. Coerse asked
whether Beale had any weapons or drugs in his possession. Beale
stated that he did not. Coerse asked Beale whether he had any
identification. Beale replied that it was at home. During their
conversation, Coerse noticed a large bulge in the left pocket of
Beale's shorts.
Coerse then asked whether he could search Beale. Beale
asked "why?" Coerse explained that he was conducting a narcotics
investigation. Coerse asked again whether he could search Beale.
Beale said: "Why, I'm not under arrest." Coerse agreed. Coerse
again asked whether Beale had any identification. When Beale
replied that he did not, Coerse asked whether he would permit a
search. Beale replied "No, you can't search me."
Coerse testified that he then informed Beale that he was
going to issue him a summons for "pedestrian in the roadway,"
a violation of Virginia Beach City Code 21-462. Cf. Code
46.2-928. Beale turned and began to walk away, but Coerse
grabbed the back of his shorts. He told Beale that he intended
to issue him a summons. Beale became "real nervous," and
motioned to a nearby residence, indicating that his
identification was there. Coerse replied that he did not need
Beale's identification.
Beale placed his left hand into the pocket with the "bulge."
Concerned that Beale was reaching for a weapon, Coerse requested
that Beale remove his hand from his pocket. Coerse frisked Beale
for weapons and "immediately recognized that [the bulge] wasn't a
weapon," suspecting, instead, that it was crack cocaine in a
plastic bag. When asked what was in his pocket, Beale said it
was money, and pulled out a dollar bill.
Coerse then placed Beale inside the police vehicle. While
he radioed for back-up, Coerse observed Beale take a quantity of
what he believed to be crack cocaine out of his pocket and place
it into his sock. Beale looked up and saw that Coerse was
watching him. Beale took the item out of the sock and brought it
up to his mouth. Coerse opened the car door and grabbed Beale's
hand. Beale and Coerse exchanged blows, and Beale fled. Coerse
and another officer apprehended him and searched him pursuant to
that arrest. The search revealed cocaine. Coerse never issued
Beale a summons for a pedestrian in the roadway violation.
While conceding that his encounter with Coerse was initially
consensual, Beale argues that he was impermissibly seized when
Coerse grabbed his shorts, and that the subsequent pat-down for
weapons was unreasonable, requiring suppression of the evidence.
We disagree.
A police officer is entitled to detain briefly an individual
who has committed an offense, in order to obtain information
required for the issuance of a summons. See Code 19.2-74,
46.2-936. Coerse had probable cause to charge Beale with
violating a city ordinance. See Durant v. City of Suffolk, 4 Va.
App. 445, 447, 358 S.E.2d 732, 733 (1987). After informing Beale
that he intended to issue him a summons, Coerse legally detained
him. Cf. Payne v. Commonwealth, 14 Va. App. 86, 414 S.E.2d 869
(1992).
The Fourth Amendment limits governmental action by
guaranteeing all citizens the right to "be secure in their
persons, houses, papers, and effects from unreasonable searches
and seizures . . . ." Terry v. Ohio, 392 U.S. 1, 8 (1968).
"[E]vidence obtained in violation of constitutional proscriptions
against unreasonable searches and seizures may not be used
against an accused." Troncoso v. Commonwealth, 12 Va. App. 942,
944, 407 S.E.2d 349, 350 (1991). Assuming, without deciding,
that the limited search of Beale for weapons was unreasonable,
the poisonous tree bore no fruit. Because no inculpatory
evidence was retrieved in the pat-down, no recourse may be had to
suppress that which does not exist.
The cocaine seized in this case resulted from a lawful
search incident to a valid arrest. See Poindexter v.
Commonwealth, 16 Va. App. 730, 733-34, 432 S.E.2d 527, 529-30
(1993). Probable cause to arrest Beale arose from his production
of apparent cocaine into plain view and his assault and battery
on Officer Coerse. See Buck v. Commonwealth, 20 Va. App. 298,
303-04, 456 S.E.2d 534, 536-37 (1995).
Accordingly, the trial court correctly denied Beale's motion
to suppress the evidence. The judgment of the trial court is
affirmed.
Affirmed.

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