Glasco v. Com.

• Decision Date: 26 February 1999
• Docket Number: Record No. 980909.
• Citation: 257 Va. 433,513 S.E.2d 137
• Court: Virginia Supreme Court
• Parties: Todd M. GLASCO v. COMMONWEALTH of Virginia.

513 S.E.2d 137

257 Va. 433

Todd M. GLASCO v. COMMONWEALTH of Virginia.

Record No. 980909.

Supreme Court of Virginia.

February 26, 1999.

Edward I. Sarfan (Sarfan & Nachman, on brief), Newport News, for appellant.

Eugene Murphy, Assistant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee.

Present: All the Justices.

KINSER, Justice.

After a bench trial on December 5, 1996, Todd M. Glasco was convicted in the Circuit Court of the City of Newport News of possession of cocaine with intent to distribute, in violation of Code § 18.2-248, and possession of a firearm while in possession of cocaine, in violation of Code § 18.2-308.4.¹ We granted Glasco this appeal on a single issue regarding the legality of a search of the passenger compartment of his vehicle incident to his arrest. Because we conclude that he was a recent occupant of the vehicle prior to his arrest, we will affirm the judgment of the Court of Appeals finding that the search was lawful.

I.

On May 4, 1996, around 11:00 o'clock p.m., Wesley T. Filer, a uniformed police officer for the City of Newport News, was on duty and patrolling in a marked police vehicle when he observed a vehicle that he suspected was being operated by Glasco. Filer was familiar with both the vehicle and Glasco because of a recent encounter with Glasco. Filer had arrested Glasco on an outstanding capias for failure to pay traffic fines approximately two weeks prior to this particular evening. Based on his knowledge that a driver's failure to pay fines normally resulted in suspension of that person's operator's license and given his previous arrest of Glasco, Filer suspected that Glasco's license to operate a motor vehicle had been suspended. However, Filer decided not to stop the vehicle at that time. Instead, he chose to follow the car so that he could determine whether Glasco was, in fact, the driver.

While following the vehicle, Filer contacted his dispatcher and requested that a check be made with the Division of Motor Vehicles (DMV) in order to determine the status of Glasco's operator's license. Before Filer received a response to his request, Glasco pulled his vehicle over to the right-hand side of the street and legally parked it there. Glasco then got out of the vehicle and began to walk toward a house on the other side of the street. At that point, Filer stopped his police cruiser approximately 20 to 30 feet behind Glasco's vehicle. After activating his rear strobe light and exiting his police car, Filer called out, "Mr. Glasco, you don't have a valid license, do you?" According to Filer, Glasco then turned around and began walking toward Filer, at which time Glasco answered, "Come on, Filer, can't you just give me a break?" Filer requested Glasco to show some form of identification. Glasco produced a Virginia identification card but no operator's license. In the meantime, Filer learned, based on the check with DMV, that Glasco's operator's license was, in fact, suspended. Thus, he charged Glasco with "driving under suspension" and placed him under arrest.

Incident to the arrest, Filer searched Glasco's person and found two small bags containing marijuana in the right, front pocket of Glasco's shorts. He also found $650 in cash and a pager on Glasco's person. Filer then put Glasco in the backseat of his police vehicle and asked a backup police officer, John V. Polak, to search Glasco's car. During this search, Polak found a .38 caliber handgun in the pocket of the driver's door and a clear, plastic bag containing, what he thought was and later, when analyzed, proved to be, crack cocaine under the floor mat on the driver's side of the vehicle.

At a hearing before the trial court on a motion to suppress the evidence found during the search of the vehicle, Filer admitted that he "had no probable cause to believe" that there was any contraband or narcotics in the vehicle when he asked Polak to search it. He did, however, assert that he had a "hunch there might be some narcotics located in the vehicle" based on information that he had received in the past regarding Glasco's involvement with narcotics, and because he had recovered narcotics from his person. The trial court concluded that, once Filer found drugs in Glasco's pocket, there was "probable cause to believe possibly there [were] narcotics in the vehicle." Accordingly, the court overruled Glasco's motion to suppress the evidence recovered during the search of the vehicle.

Before the Court of Appeals, Glasco challenged the sufficiency of the evidence to support his convictions and the legality of both the initial encounter with the police officer and the subsequent search of his vehicle incident to his arrest. With regard to the issue before this Court, the Court of Appeals concluded that the search of Glasco's automobile incident to arrest was lawful because it was "contemporaneous with the arrest and the arrestee's recent occupancy of the vehicle." Glasco v. Commonwealth., 26 Va.App. 763, 773, 497 S.E.2d 150, 154 (1998).² Thus, the Court of Appeals affirmed the judgment of the trial court. Id. at 776, 497 S.E.2d at 156.

II.

We begin our analysis of a search incident to arrest with the decision of the United States Supreme Court in Chimel v. California, 395 U.S. 752, 89 S.Ct. 2034, 23 L.Ed.2d 685 (1969). In that case, the Court defined the parameters of a lawful search incident to arrest:

When an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape. Otherwise, the officer's safety might well be endangered, and the arrest itself frustrated. In addition, it is entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction. And the area into which an arrestee might reach in order to grab a weapon or evidentiary items must, of course, he governed by a like rule. A gun on a table or in a drawer in front of one who is arrested can be as dangerous to the arresting officer as one concealed in the clothing of the person arrested. There is ample justification, therefore, for a search of the arrestee's person and the area "within his immediate control" — construing that phrase to mean the area from within which he might gain possession of a weapon or destructible evidence.

Id at 762-63, 89 S.Ct. 2034.

Several years after the Chimel decision, the Supreme Court acknowledged that the extent of the area that is within an arrestee's control and thus subject to being searched had been construed in different ways. United States v. Robinson, 414 U.S. 218, 224, 94 S.Ct. 467 (1973). With regard to the search of a vehicle incident to arrest, the Supreme Court later stated that the "courts have found no workable definition of `the area within the immediate control of the arrestee' when that area arguably includes the interior of an automobile and the arrestee is its recent occupant." New York v. Belton, 453 U.S. 454, 460, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981). Thus, the Court established a "bright-line" rule to govern such searches: "when a policeman has made a lawful custodial arrest of the occupant of an automobile, he may, as a contemporaneous incident of that arrest, search the passenger compartment of that automobile." Id.

Using this rule, the Court upheld the legality of the automobile search at issue in Belton. The police officer in that case had stopped a vehicle, in which Belton was a passenger, for travelling at an excessive rate of speed. Id. at 455, 101 S.Ct. 2860. After directing Belton and the other occupants to get out of the automobile, the officer arrested them for unlawful possession of marijuana. Incident to the arrest, he searched the interior passenger compartment of the vehicle. Id. at 456, 101 S.Ct. 2860. During the search, the police officer found cocaine in the pocket of Belton's jacket that had been lying on the back seat of the car. Id.

Belton established a two-part inquiry for determining the legality of a search of a vehicle incident to arrest: (1) whether the defendant was the subject of a lawful custodial arrest; and (2) whether the arrestee was the occupant of the vehicle that was searched. People v. Savedra, 907 P.2d 596, 598-99 (Colo.1995). The present appeal involves the second part of the inquiry and requires that we address the scope of the terms "occupant" and "recent occupant" as used by the Supreme Court in Belton.

Glasco contends that the search of his vehicle violated his Fourth Amendment right against unreasonable searches and seizures because he was not a recent occupant of the vehicle at the time of his arrest. He had parked his vehicle and was walking across the street when Filer first initiated contact with him. Further, argues Glasco, he was sitting in the back seat of Filer's police cruiser, parked 20 to 30 feet behind Glasco's vehicle, when Polak actually searched the vehicle. Thus, according to Glasco, he was not in a position to seize a weapon out of the vehicle or to destroy evidence in it.

Initially, we conclude that certain facts in this case do not render the search of Glasco's vehicle outside the parameters of a lawful search incident to arrest. The fact that Glasco was not physically in the vehicle when he was arrested or when Polak searched the vehicle does not mean that Glasco was not a recent occupant of the vehicle. The defendant in Belton likewise was outside the vehicle when the police officer arrested him and conducted the vehicle search. 453 U.S. at 457, 101 S.Ct. 2860. "A police officer may search the passenger compartment of an automobile incident to the lawful custodial arrest ... even if the arrestee has been separated from his car prior to the search." United States v. Mans, 999 F.2d 966, 968-69 (6th Cir.1993); accord United States v. Snook, 88 F.3d 605, 608 (8 th Cir.1996); United...