DORROUGH v. Commonwealth Of Va.
| Decision Date | 22 June 2010 |
| Docket Number | No. 1759-09-1,01 September 1759 |
| Court | Virginia Court of Appeals |
| Parties | TYREL MARQUIS DORROUGHv.COMMONWEALTH OF VIRGINIA |
Charles E. Haden for appellant.
Kathleen B. Martin, Senior Assistant Attorney General (Kenneth T. Cuccinelli, II, Attorney General, on brief), for appellee.
Present: Judges Kelsey, McClanahan and Haley Argued at Chesapeake, Virginia
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
The trial court found Tyrel Marquis Dorrough guilty of possession of cocaine with intent to distribute and possession of marijuana. On appeal, Dorrough argues the court erroneously denied his motion to suppress. We disagree and affirm.
When reviewing a denial of a suppression motion, we review the evidence "in the light most favorable to the Commonwealth, giving it the benefit of any reasonable inferences." Glenn v. Commonwealth, 49 Va. App. 413, 416, 642 S.E.2d 282, 283 (2007) (en banc) (citation omitted), affd, 275 Va. 123, 654 S.E.2d 910 (2008). This standard requires us to "give due weight to inferences drawn from those facts by resident judges and local law enforcement officers." Malbrough v. Commonwealth, 275 Va. 163, 169, 655 S.E.2d 1, 3 (2008) (citation omitted). In doing so, we "consider facts presented both at the suppression hearing and at trial." Testa v. Commonwealth, 55 Va. App. 275, 279, 685 S.E.2d 213, 215 (2009) (citation omitted).
One afternoon in February 2008, Newport News Police Officer H.A. Westrick made a traffic stop of a vehicle driven by Dorrough. During the stop, Officer Westrick discovered Dorrough was driving on a suspended license. Officer Westrick prepared a summons for the offense and began to explain it to Dorrough. During this conversation, another officer, Christopher Brown, announced that he saw on the floorboard of Dorrough's vehicle a small piece of marijuana. Officer Brown had been a police officer for eleven years and had prior experience as an adult probation officer. Brown received specialized training on "drug recognition" and previously attended "several drug interdiction schools also to identify drugs." The marijuana appeared to be a "piece of a stem" about a quarter-inch in length and "little bits of the leaf." Based upon his training and experience, Brown concluded, 1
Officer Westrick likewise observed the stem on the vehicle floorboard and confirmed it to be marijuana. At that point, Westrick testified she detained Dorrough, advised him of his Miranda rights, and asked him about the marijuana. Dorrough waived his rights, said the marijuana was "probably his," and admitted he had smoked marijuana earlier that day. Westrick then searched Dorrough's vehicle and discovered a set of scales with marijuana residue, a bag containing 13.87 grams of cocaine, additional marijuana residue in a cup holder, a glass measuring cup with cocaine residue, and a box of plastic bags. During a later interview at the police station, Dorrough confessed to being a drug runner who "moves" cocaine from Yorktown to Newport News.
Prior to trial, Dorrough filed a motion to suppress. He did not contest the traffic stop of the vehicle. Nor did he object to the scope of the search of the vehicle. Instead, Dorrough argued the police officers provided insufficient factual basis for their belief that the plant material on the floorboard was marijuana. The trial court denied the motion, presided over the trial, and found Dorrough guilty of possession of cocaine with intent to distribute and possession of marijuana.
Dorrough frames his argument in a circuitous manner. He challenges the search of the vehicle only by first challenging his "arrest" on drug charges:
In the present case, Dorrough does not challenge the scope of the search conducted by Officer Brown and Officer Westrick. The sole issue raised is whether Officer Brown and Officer Westrick had probable cause to arrest Dorrough for possession of marijuana and thus to perform a search incident to arrest.
Appellant's Br. at 10 (emphasis added). That arrest, Dorrough argues, rested solely on the officers' observation of a small piece of plant material that could have been something other than marijuana.2 Because the officers had no probable cause to believe the plant material was marijuana, Dorrough reasons, they likewise had no probable cause to arrest him or to search his vehicle incident to that arrest. Li at 13 ().
Before addressing the ultimate issue probable cause to believe the plant material was marijuana we must first clarify the legal context in which the issue arises. At the time theofficers observed what they thought was marijuana in Dorrough's vehicle, he was already in police custody for driving on a suspended license. Officer Westrick was still explaining the summons process to Dorrough when Officer Brown saw the marijuana stem. Under Code § 19.2-74(A)(1), Westrick was authorized to release Dorrough from custody only after Dorrough verified in writing "his written promise to appear" in court at the specified time and place. See Hines v. Commonwealth, 39 Va. App. 752, 758, 576 S.E.2d 781, 784 (2003) . No evidence in the record suggests Dorrough executed the summons prior to the discovery of the marijuana.
While in custody for the traffic offense, Dorrough could be questioned about the suspended driving offense or any other matter that did not appreciably lengthen the detention. As we recently explained, "where a seizure of a person is based on probable cause to believe that a traffic violation was committed, an officer does not violate the Fourth Amendment by asking a few questions about matters unrelated to the traffic violation, even if this conversation briefly extends the length of the detention." Ellis v. Commonwealth, 52 Va. App. 220, 227, 662 S.E.2d 640, 643 (2008) (citations omitted). The same is true even with a temporary investigatory detention. During a lawful roadside stop, the
temporary seizure of driver and passengers ordinarily continues, and remains reasonable, for the duration of the stop. Normally, the stop ends when the police have no further need to control the scene, and inform the driver and passengers they are free to leave. An officer's inquiries into matters unrelated to the justification for the traffic stop, this Court has made plain, do not convert the encounter into something other than a lawful seizure, so long as those inquiries do not measurably extend the duration of the stop.
Arizona v. Johnson, 129 S. Ct. 781, 788 (2009). Thus, the officers needed no additional legal authority to justify Dorrough's detention at the time they asked him if the marijuana stembelonged to him. This conclusion is all the more true where, as here, the discovery of suspected marijuana authorized at minimum a continued investigatory detention.3
Equally important, it matters not that the discovery of the suspected marijuana ultimately led to the arrest of Dorrough for marijuana possession, which, in turn, led to the search of the vehicle. The middle step is legally superfluous. The initial discovery of the marijuana, assuming probable cause existed, permitted the officers to search the entire vehicle under the automobile exception to the warrant requirement. "If there is probable cause to believe a vehicle contains evidence of criminal activity, United States v. Ross, 456 U.S. 798, 820-821 (1982), authorizes a search of any area of the vehicle in which the evidence might be found." Arizona v. Gant, 129 S. Ct. 1710, 1721 (2009); Wyoming v. Houghton, 526 U.S. 295, 301 (1999) . Thus, when an officer observes what appears to be marijuana "on the floorboard of the vehicle," he has "every right to search the passenger area of the car, the trunk, and any and all containers which might conceal contraband." United States v. Burnett, 791 F.2d 64, 67 (6th Cir. 1986).4
Properly framed, then, the only issue is whether the officers had probable cause to search the vehicle after observing in plain view what they believed to be marijuana on the floorboard. We believe they did.
As the United States Supreme Court has recently emphasized, the "very phrase 'probable cause' confirms that the Fourth Amendment does not demand all possible precision." Herring v. United States, 129 S. Ct. 695, 699 (2009). "Perhaps the best that can be said generally about the required knowledge component of probable cause for a law enforcement officer's evidence search is that it raise a 'fair probability' or a 'substantial chance' of discovering evidence of criminal activity." Safford Unified Sch. Dist. # 1 v. Redding, 129 S. Ct. 2633, 2639 (2009) (quoting Illinois v. Gates, 462 U.S. 213, 238, 244 n.13 (1983)).5 Demanding more imposes an "unduly high degree of certainty as to the incriminatory character of evidence," Texas v. Brown, 460 U.S. 730, 741 (1983) (plurality opinion), and implies wrongly so that the Fourth Amendment requires "that a police officer 'know' that certain items are contraband or evidence of a crime" before they can be seized. Id
Consequently, the probable cause standard does not "demand any showing that such a belief be correct or more likely true than false." Slayton v. Commonwealth, 41 Va. App. 101, 106, 582 S.E.2d 448, 450 (2003) (quoting Brown, 460 U.S. at 742).6 "Finely tuned standards such as proof beyond a reasonable doubt or...
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