Hunt v. Com.

• Citation: 41 Va. App. 404,585 S.E.2d 827
• Decision Date: 02 September 2003
• Docket Number: Record No. 1575-02-2.
• Parties: Marcus Anthony HUNT v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

585 S.E.2d 827

41 Va. App. 404

Marcus Anthony HUNT v. COMMONWEALTH of Virginia.

Record No. 1575-02-2.

Court of Appeals of Virginia, Richmond.

September 2, 2003.

Craig W. Stallard, Assistant Public Defender (Office of the Public Defender, on brief), for appellant.

Stephen R. McCullough, Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellee.

Present ELDER, FRANK and FELTON, JJ.

ELDER, Judge.

Marcus Hunt entered a conditional plea of guilty for (1) possession of a firearm while in possession of cocaine, in violation of Code § 18.2-308.4(B), and (2) possession of cocaine with the intent to distribute, in violation of Code § 18.2-248. On appeal, Hunt contends the trial court erred in denying his motion to suppress evidence taken from his person, claiming he was searched in violation of Code § 19.2-74 and the Fourth Amendment. We hold the search was unreasonable. Although the officer's non-custodial arrest of Hunt for trespass was lawful, the seizure became a full custodial arrest when the officer made an additional show of authority by telling the handcuffed Hunt that he would search him, and Hunt immediately submitted to that additional show of authority by admitting that he possessed a weapon. Without Hunt's admission, the officer had no basis to frisk, search, or effect a full custodial arrest of Hunt. Thus, Hunt's admission that he possessed a weapon was tainted by the illegal custodial arrest. Accordingly, we hold the evidence should have been suppressed, and we reverse the judgment of the trial court.

I. BACKGROUND

On February 15, 2002, Officer Ferrell of the Richmond Police Department was working off-duty at the Midlothian Village apartment complex. The apartment complex has a history of drug problems, shootings, and robberies. At the beginning of his shift, Officer Ferrell reviewed photographs and a list of individuals who had previously been banned from the property. One of those individuals was Marcus Hunt, who was banned from the property on August 30, 1999, two-and-one-half years earlier. Officer Ferrell began patrolling the property with Detective Bronson. During the patrol, they found Hunt, with two other individuals, in a hallway on the third floor of a building within the apartment complex.

Officer Ferrell recognized Hunt as the person in the photograph, handcuffed Hunt, arrested him for trespass, and escorted him to the rental office. The other two individuals with Hunt were also handcuffed and taken to the rental office. Officer Ferrell took Hunt to the rental office for safety reasons. He said people were "hanging out" in the complex and he "[did not] want to arouse the crowd." Furthermore, his paperwork was located in the rental office and it provided a place where they could more easily "sit down and talk."

At the rental office, Officer Ferrell advised Hunt of his rights pursuant to Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), and asked Hunt, "Before I search you is there anything I need to know about?" Hunt responded, "Yes. I have a firearm on [sic] my possession," and he indicated the firearm was located in his jumper. Officer Ferrell recovered a loaded.32 caliber revolver, four individually wrapped, "white-like" rocks that were later determined to be cocaine, and two-hundred-eleven dollars in United States currency.

Prior to trial, Hunt filed a motion to suppress evidence. He argued that, pursuant to Code § 19.2-74, Officer Ferrell was required to release him on a summons for misdemeanor trespass. He contended that Ferrell's failure to release him on a summons resulted in an unlawful seizure and, thus, that any physical evidence Officer Ferrell recovered during the seizure should be suppressed. At the hearing, Officer Ferrell was questioned as to whether he planned to effect a custodial arrest or to release Hunt on a summons. Officer Ferrell replied:

I guess that was going to be based on talking with him and find out if he actually understood that if I was going to release him on a summons he was going to come to court or stay off the property. Based on the past with people as far as trespassing when I write a summons they come back the very next day or very next week. I guess my intention was to take him downtown.

The trial court denied Hunt's motion to suppress. Noting that Officer Ferrell had a picture of Hunt, who previously had been told to stay off the property but did not do so, the court ruled "[it was] reasonable for [Officer Ferrell] to assume that [Hunt is] not going to do what they told him to do." At trial, Hunt entered conditional guilty pleas to charges of possession of a firearm while in possession of cocaine, in violation of Code § 18.2-308.4(B), and possession of cocaine with the intent to distribute, in violation of Code § 18.2-248.¹

II. ANALYSIS

Hunt contends on appeal that the trial court erroneously denied his motion to suppress because the incriminating evidence was seized in a search that violated Code § 19.2-74 and the Fourth Amendment. Hunt argues that the search of his person and subsequent arrest were unlawful because Officer Ferrell failed to release him on a summons, pursuant to Code § 19.2-74, for misdemeanor trespass.² We agree.

On appeal of the denial of a motion to suppress, we view the evidence in the light most favorable to the Commonwealth, granting to it all reasonable inferences fairly deducible therefrom. Commonwealth v. Grinstead, 12 Va.App. 1066, 1067, 407 S.E.2d 47, 48 (1991). "[W]e are 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." McGee v. Commonwealth, 25 Va.App. 193, 198, 487 S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996)). However, we review de novo the trial court's application of defined legal standards such as reasonable suspicion and probable cause to the particular facts of the case. Ornelas, 517 U.S. at 699, 116 S.Ct. at 1663. "Similarly, the question whether [or to what extent] a person has been seized in violation of the Fourth Amendment is reviewed de novo on appeal." Reittinger v. Commonwealth, 260 Va. 232, 236, 532 S.E.2d 25, 27 (2000).

Code § 19.2-74(A)(1) states in relevant part:

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 provision of this Code punishable as a Class 1 or Class 2 misdemeanor 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.

Code § 19.2-74(A)(1) mandates the release of persons arrested for Class 1 and Class 2 misdemeanors, unless the offense is drunk driving or a designated offense under Title 46.2. Additionally, an arresting officer "`shall' issue a summons in the absence of an express exception to the statute[], or a reasonable belief that the person arrested will fail to appear in court on his or her promise or fails to discontinue the unlawful act." West v. Commonwealth, 36 Va.App. 237, 240, 549 S.E.2d 605, 606 (2001). Once the officer gives the arrested person the summons and receives from that person his promise to appear at the designated time and place, the officer is required to release him from custody unless the facts warrant otherwise.³ Id. at 241, 549 S.E.2d at 607.

A full custodial arrest, necessary to justify a search of the individual incident to arrest, generally is not permitted under the statute. However, Code § 19.2-74 authorizes a full custodial arrest, justifying an accompanying search, if: (1) the arrest is for one of the listed offenses; (2) the arrestee who is to be released on a summons refuses to abate the unlawful act; (3) the arresting officer believes the arrestee is likely to disregard the summons; or (4) the officer reasonably believes that the arrestee is likely to cause harm to himself or another person.

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), the Fourth Amendment also places limitations on searches incident to 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, issued him a citation rather than arresting him. After issuing Knowles 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. "Here we are asked to extend that `bright-line rule' to a situation where the concern for officer safety is not present to the same extent and...