Moore v. Com., Record No. 2648-03-1.

Citation609 S.E.2d 74,45 Va. App. 146
Decision Date22 February 2005
Docket NumberRecord No. 2648-03-1.
PartiesDavid Lee MOORE v. COMMONWEALTH of Virginia.
CourtCourt of Appeals of Virginia

S. Jane Chittom, Appellate Defender (Virginia Indigent Defense Commission, on briefs), for appellant.

Susan L. Parrish, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., ELDER, J., and ANNUNZIATA, S.J.1

ELDER, Judge.

David Lee Moore (appellant) appeals his conviction under Code § 18.2-248 for possession of cocaine with intent to distribute. Appellant argues on appeal that his conviction should be reversed because the trial court erred in denying his motion to suppress. Appellant's motion to suppress was based on the failure of police to issue a summons instead of effecting an arrest, pursuant to Code § 19.2-74(A)(1), when they stopped his car and determined he was driving on a suspended license. For the following reasons, we reverse.

I. BACKGROUND

On appeal, we review the evidence, and all reasonable inferences that can be drawn from the evidence, in a light most favorable to the Commonwealth as the party prevailing below. Garcia v. Commonwealth, 40 Va.App. 184, 189, 578 S.E.2d 97, 99 (2003). So viewed, the evidence establishes that on February 20, 2003, Detective B.J. Karpowski overheard a conversation on his police radio about a man, whose nickname was "Chubs," driving a car in the area. Drawing on his knowledge that a man nicknamed Chubs had just been released from a federal penitentiary and was driving on a suspended license, Karpowski radioed other officers and told them to stop Chubs.

Detectives Mark Anthony and T. McAndrew responded to Karpowski's radio message and stopped appellant, whom Anthony knew was nicknamed "Chubs." Although appellant was not the man Karpowski referred to in his radio message, the detectives determined that he was driving on a suspended license.

Appellant was alone in the car with a dog the detectives described as "very upset with [the detectives' presence]" and "big enough" that the officers "didn't want to get too close to it." After confirming that appellant's license was suspended, Detectives Anthony and McAndrew arrested appellant, handcuffed him, and placed him in Detective McAndrew's vehicle. Due to a miscommunication, the detectives did not search appellant at that time. The detectives then called animal control and requested that they pick up the dog. Forty-five minutes later, after animal control arrived, the detectives drove to a hotel room where appellant had been staying. There, McAndrews searched appellant's person and recovered crack cocaine from his jacket and $516 in cash from his pants pocket.

When asked at the hearing why appellant was arrested, Detective Anthony stated, "Just our prerogative, we chose to effect an arrest. Additionally, subsequent to that traffic stop, narcotics were eventually recovered." When asked why they did not release appellant on a summons, Anthony replied, "Well, we were still in the middle of the investigation; the investigation was not complete yet. We were, pursuant to the traffic stop,... also conducting a narcotics investigation."

Appellant moved to suppress on statutory and constitutional grounds, arguing the search of his person was tainted by the illegal arrest that preceded it. The arrest was illegal, he argued, because the detectives failed to release him on a summons pursuant to Code § 19.2-74(A)(1). The trial court denied the motion to suppress. Citing Atwater v. City of Lago Vista, 532 U.S. 318, 121 S.Ct. 1536, 149 L.Ed.2d 549 (2001), the trial court held the arrest violated neither the Fourth Amendment nor Virginia law permitting an officer to arrest for a misdemeanor committed in his presence. After hearing additional evidence, the trial court convicted appellant and sentenced him to five years in prison, one year and six months suspended. This appeal followed.

II. ANALYSIS

Code § 19.2-74 provides, in pertinent part:

A. 1. Whenever any person is detained by or is in the custody of an arresting officer for any violation committed in such officer's presence which offense is a violation of any county, city or town ordinance or of any provision of this Code punishable as a Class 1 or Class 2 misdemeanor or any other misdemeanor for which he may receive a jail sentence, except as otherwise provided in Title 46.2, or § 18.2-266, or an arrest on a warrant charging an offense for which a summons may be issued, and when specifically authorized by the judicial officer issuing the warrant, the arresting officer shall take the name and address of such person and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons or notice. Upon the giving by such person of his written promise to appear at such time and place, the officer shall forthwith release him from custody. However, if any such person shall fail or refuse to discontinue the unlawful act, the officer may proceed according to the provisions of § 19.2-82.
Anything in this section to the contrary notwithstanding, if any person is believed by the arresting officer to be likely to disregard a summons issued under the provisions of this subsection, or if any person is reasonably believed by the arresting officer to be likely to cause harm to himself or to any other person, a magistrate or other issuing authority having jurisdiction shall proceed according to the provisions of § 19.2-82.

Driving while one's license is suspended is a Class 1 misdemeanor. Code § 46.2-301(C). Therefore, in the instant case, Code § 19.2-74 required the detectives to issue appellant a summons and release him from custody upon securing his promise to appear unless: (1) appellant's offense was drunk driving under Code § 18.2-266 or a specifically exempted offense under Title 46.2, (2) appellant failed or refused to discontinue the unlawful act, (3) the detectives believed appellant was likely to disregard the summons, or (4) the detectives reasonably believed appellant was likely to cause harm to himself or to another person. Code § 19.2-74; see also West v. Commonwealth, 36 Va.App. 237, 240-42, 549 S.E.2d 605, 606-07 (2001)

. Absent proof of facts supporting application of one of these exceptions, a full custodial arrest, necessary to justify a search of the individual incident to arrest, was not permitted under the statute.

As the United States Supreme Court explained in Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998), upon which appellant relies, the Fourth Amendment also places limitations on searches conducted incident to issuance of a citation. In Knowles, 525 U.S. at 114, 119 S.Ct. at 486, an Iowa police officer stopped Knowles for speeding and, as permitted by statute, exercised his discretion to issue Knowles a citation rather than arrest him. After issuing the citation, the officer conducted a full search of Knowles's car, found a bag of marijuana and a "pot pipe" under the driver's seat, and arrested Knowles for offenses related to his possession of that contraband. Id. The Supreme Court considered whether conducting a full search of Knowles's vehicle pursuant to the issuance of a traffic citation was consistent with the Fourth Amendment and concluded that it was not. Id.

According to the Supreme Court, "two historical rationales [exist] for the `search incident to arrest' exception [to the Fourth Amendment]: (1) the need to disarm the suspect in order to take him into custody, and (2) the need to preserve evidence for later use at trial." Id. at 116, 119 S.Ct. at 487. The Court determined in Knowles that neither rationale was present and refused to extend the "search-incident-to-arrest" exception to permit searches incident to the issuance of citations. Id. at 118-19, 119 S.Ct. at 488. The Court held that "officers have other, independent bases to search for weapons and protect themselves from danger," including the ability to "perform a `patdown' of [the detainee] upon reasonable suspicion that [he] may be armed and dangerous." Id. at 117-18, 119 S.Ct. at 488 (citing Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968)).

The Virginia Supreme Court addressed a similar issue in Lovelace v. Commonwealth, 258 Va. 588, 522 S.E.2d 856 (1999). Lovelace and several other men were drinking beer while standing in the parking lot of a convenience store known to be an "open air drug market." Id. at 591, 522 S.E.2d at 857. Officers in the area saw a beer bottle fly through the air but did not see who threw it. Id. One officer testified that the bottle came from the area where Lovelace was standing. Id. Lovelace and the other men were ordered to lie face down on the ground. Id. An officer approached Lovelace and asked him his name. Id. Lovelace identified himself but remained silent when the officer asked him whether he had any drugs or guns. Id. The officer proceeded to "pat down" Lovelace. Id. In Lovelace's pocket, he felt something like a plastic bag with lumps in it, but he did not know what was in the bag. Id. at 591-92, 522 S.E.2d at 857. The officer nevertheless reached in Lovelace's pocket and retrieved the bag. Id. at 592, 522 S.E.2d at 857. The substance was later identified as crack cocaine. Id.

In reversing Lovelace's conviction, the Court said:

Knowles is applicable.... [T]he initial reason for detaining Lovelace was his alleged commission of a Class 4 misdemeanor for which the issuance of a summons was authorized under Code § 19.2-74(A)(2). Only if Lovelace had failed or refused to discontinue the unlawful act could the officer have effected a custodial arrest and taken the defendant before a magistrate. Code § 19.2-74(A)(2). However, there is no evidence in the record that Lovelace acted in such a manner. The fact that the officers could have issued only a summons for the alcohol-related offense also negates the Commonwealth's argument that the existence
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