Moore v. Com.

• Decision Date: 22 November 2005
• Docket Number: Record No. 2648-03-1.
• Citation: 622 S.E.2d 253
• Parties: David Lee MOORE v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

622 S.E.2d 253

David Lee MOORE v. COMMONWEALTH of Virginia.

Record No. 2648-03-1.

Court of Appeals of Virginia, Richmond.

November 22, 2005.

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

Susan L. Parrish, Assistant Attorney General (Judith Williams Jagdmann, Attorney General, on brief), for appellee.

Present: FITZPATRICK, C.J., and BENTON, ELDER, BUMGARDNER, FRANK, HUMPHREYS, CLEMENTS, FELTON, KELSEY, McCLANAHAN and HALEY, JJ.

HUMPHREYS, Judge.

This matter comes before the Court on rehearing en banc from a divided panel opinion issued February 22, 2005. David Lee Moore ("Moore") argues on appeal that his conviction for possession of cocaine with intent to distribute should be reversed because the trial court erred in denying his motion to suppress. Moore reasons that, because his underlying arrest for driving on a suspended license violated both Code § 19.2-74(A)(1) and the Fourth Amendment to the United States Constitution, the evidence uncovered during the search incident to that arrest must be suppressed. For the reasons that follow, we affirm his conviction.

I. Background

On appeal, we review the evidence, and all reasonable inferences deducible therefrom, in the light most favorable to the Commonwealth, the prevailing party below. Garcia v. Commonwealth, 40 Va.App. 184, 189, 578 S.E.2d 97, 99 (2003). So viewed, the evidence establishes the following.

On February 20, 2003, Detective B.J. Karpowski overheard a conversation on his police radio between Officers McAndrew and Anthony. The officers were discussing the fact that a man nicknamed "Chubs" was 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 the other officers and told them to stop the vehicle driven by "Chubs."¹

Officers Anthony and McAndrew responded to Karpowski's radio message and stopped Moore, whom Officer Anthony knew was nicknamed "Chubs." Although Moore was not the man Detective Karpowski referred to in his radio message, Officer Anthony determined that Moore was, in fact, driving on a suspended license.

After confirming that Moore's license was suspended, Officer Anthony arrested Moore, handcuffed him, and advised him of his Miranda rights. Officer Anthony then asked Moore if he understood his rights, and Moore acknowledged that he did. Officer Anthony also asked Moore where he was staying and if he had any narcotics on his person. Moore voluntarily told Officer Anthony that he was staying in an Econo-Lodge in Chesapeake. Moore was then taken to Officer McAndrew's vehicle, where Moore signed a waiver of consent allowing the officers to search his hotel room.² Moore was then placed in Officer McAndrew's police car. However, due to a miscommunication, neither officer conducted a search incident to arrest at that time. In fact, Officer McAndrew was "under the impression that [Moore] had been searched prior to placing him in my police vehicle."

Once Moore was placed in the police car, the officers called animal control to pick up a dog that was riding in Moore's vehicle.³ After animal control arrived forty-five minutes later, the officers drove to the hotel room where Moore had been staying. There, Officer McAndrew realized Moore had not been searched. The officers made a protective sweep of the hotel room, and Officer McAndrew then conducted a search of Moore incident to arrest. He recovered crack cocaine from Moore's jacket and $516 in cash from his pants pocket. Moore was then taken back to the City of Portsmouth.

Moore moved to suppress the evidence recovered from his person on statutory and constitutional grounds, arguing the search of his person was tainted by the illegal arrest that preceded it. Specifically, Moore argued the arrest was illegal because the detectives failed to release him on a summons pursuant to Code § 19.2-74(A)(1).

When asked at the suppression hearing why Moore was arrested, Officer Anthony stated, "just our prerogative, we chose to effect an arrest." Additionally, after the traffic stop, "narcotics were eventually recovered." When asked why Moore was not released on a summons, Anthony replied, "Well, we were still in the middle of an investigation; the investigation was not complete yet. We were, pursuant to the traffic stop, . . . also conducting a narcotics investigation."

The trial court denied the motion to suppress, holding that the arrest neither violated 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 Moore of possession of cocaine with intent to distribute, and sentenced him to five years in prison, with one year and six months suspended.

On appeal, a divided panel of this Court reversed the judgment of the trial court. See Moore v. Commonwealth, 45 Va.App. 146, 609 S.E.2d 74 (2005). We granted the Commonwealth's petition for en banc review, stayed the mandate of the panel decision, and reinstated the appeal. Upon rehearing en banc, we affirm the judgment of the trial court and reinstate Moore's conviction.

II. Analysis

On appeal, "[t]his Court is `bound by the trial court's findings of historical fact unless "plainly wrong" or without evidence to support them and we give due weight to the inferences drawn from those facts by resident judges and local law enforcement officers.'" Davis v. Commonwealth, 37 Va.App. 421, 429, 559 S.E.2d 374, 378 (2002) (quoting Neal v. Commonwealth, 27 Va.App. 233, 237, 498 S.E.2d 422, 424 (1998)). However, "whether a defendant is seized in violation of the Fourth Amendment is a question that is reviewed de novo on appeal." Id.

Moore argues on appeal that, because the initial arrest was unauthorized by Code § 19.2-74, it was also in violation of his Fourth Amendment rights. As such, Moore contends the fruits of the subsequent search, specifically, the cocaine recovered from his person, must be suppressed. In response, the Commonwealth argues that Moore's arrest did not violate Code § 19.2-74.⁴ The Commonwealth reasons that, because Moore was the only one driving the car, and because he did not have a valid driver's license, Moore ultimately would "fail to discontinue the unlawful act."⁵ The Commonwealth further contends that, even if the arrest was invalid, it nonetheless was constitutional and does not trigger the application of the Fourth Amendment exclusionary rule.

For the reasons that follow, we hold that, although the arrest violated the express provisions of Code § 19.2-74, the arrest and resulting search did not violate Moore's constitutional — as opposed to statutory — rights. And, because Code § 19.2-74 does not provide an exclusionary remedy, we must affirm the trial court's denial of Moore's motion to suppress.

A. The Application of Code § 19.2-74

Code § 19.2-74 provides, in pertinent part, that

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 . . . 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.

Code § 19.2-74(A)(1) (emphasis added). The statute also sets forth several exceptions to this general rule, providing that an officer may effectuate a warrantless arrest, pursuant to Code § 19.2-82, if: (1) "any such person shall fail or refuse to discontinue the unlawful act," or (2) "if any person is believed by the arresting officer to be likely to disregard a summons . . . or . . . to be likely to cause harm to himself or to any other person. . . ." Code § 19.2-74(A)(1).

Accordingly, Code § 19.2-74, in conjunction with Code § 19.2-82, permits an officer to conduct a warrantless custodial arrest in two types of circumstances. First, an arrest is proper if the person fails or refuses to discontinue the unlawful act or refuses to give a written promise to appear. Id. Second, an arrest is also proper if the officer reasonably believes the person will likely disregard the summons or will likely do harm to himself or to others. Id.

In the first instance, the ability to arrest is based upon the offender's actual conduct, not potential future conduct. Thus, according to Lovelace v. Commonwealth, 258 Va. 588, 522 S.E.2d 856 (1999), only if Moore had "failed or refused to discontinue the unlawful act could the officers have effected a custodial arrest and taken the defendant before a magistrate." Id. at 596, 522 S.E.2d at 860. In this case, Moore complied with all of the officers' requests, including discontinuing the unlawful conduct when he stopped his vehicle. There is no evidence showing Moore failed or refused to discontinue the unlawful act. Moreover, Moore did not refuse to give a written promise to appear, as a summons was never issued.

In the second instance, an arrest may be based on a "reasonable belief" about the offender's future conduct. However, "although the statute refers to predictive estimation of the accused person's future conduct, the standard for determining satisfaction of the statute is objective, whether evidence supports a reasonable belief that the statutory circumstances obtain." Fox v. Commonwealth, 43 Va.App. 446, 450, 598 S.E.2d 770, 771 (2004). In this case, there is no evidence that Moore would disregard the summons or would be likely to cause harm to himself or to others. Moore did not argue with the officers, nor did ...