Lovelace v. Com., Record No. 981447.

• Decision Date: 05 November 1999
• Docket Number: Record No. 981447.
• Citation: 522 S.E.2d 856,258 Va. 588
• Parties: John David LOVELACE v. COMMONWEALTH of Virginia.
• Court: Virginia Supreme Court

522 S.E.2d 856

258 Va. 588

John David LOVELACE v. COMMONWEALTH of Virginia.

Record No. 981447.

Supreme Court of Virginia.

November 5, 1999.

Joseph A. Sanzone, Lynchburg (Sanzone & Baker, on brief), for appellant.

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

Present: All the Justices.

KINSER, Justice.

John David Lovelace was convicted of possession of marijuana and possession with the intent to distribute cocaine in the Circuit Court of Halifax County. He appealed, alleging that the circuit court erred in denying his motion to suppress evidence that was seized from him during a search of his person.¹ The Court of Appeals of Virginia affirmed the convictions. Lovelace v. Commonwealth, 27 Va.App. 575, 500 S.E.2d 267 (1998). This Court refused Lovelace's petition for appeal and his subsequent petition for rehearing. Thereafter, the Supreme Court of the United States granted Lovelace a writ of certiorari, vacated the judgment of this Court, and remanded the case to this Court for further consideration in light of its decision in Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998). Lovelace v. Virginia, ___ U.S. ___, 119 S.Ct. 1751, 143 L.Ed.2d 784 (1999). Because we conclude that the search of Lovelace violated his Fourth Amendment rights, we will reverse his convictions.

FACTS

Deputy Sheriff Shawn Sweeney was on patrol in the Cody area of Halifax County about 10:00 p.m. on August 23, 1996. Sweeney, along with Deputy Sheriff Mike Womack and some other police officers, were conducting a "jump-out" operation. At that time, Sweeney observed the defendant standing on the premises of a car wash/convenience store (the store). Womack had previously observed drug trafficking at that location. He described the area as an "open air drug market."

As Sweeney arrived at the store and got out of his vehicle, he saw Lovelace holding a green glass bottle containing what Sweeney assumed was an alcoholic beverage. According to Sweeney, Lovelace "had the bottle up to his mouth and appeared to be drinking from it." Sweeney told Lovelace to drop the bottle and lie face down on the ground. When Lovelace dropped the bottle, it broke and the pieces were not recovered from the scene.

According to Womack, the defendant was standing at the store "among a couple of guys" with open bottles of beer. Womack testified that the defendant and the other two or three people standing in the store's parking lot were ordered to lie face down on the ground after the officers saw a bottle fly through the air and hit a car.² Although Womack did not see who threw the bottle, he stated that it came from the area where Lovelace was standing.

Womack then approached Lovelace, who was lying on the ground as directed, and asked the defendant his name. Lovelace responded by identifying himself, but remained silent when Womack questioned whether he had any drugs or guns. When Lovelace did not respond to Womack's questioning regarding drugs or guns, Womack performed a "patdown" of the defendant. During the "patdown," Womack felt something like a bag in Lovelace's pocket. Womack admitted that he did not know "if it was a plastic bag or what at that time," but said he felt some lumps and something that was "squooshy." It was a kind of bag with which he was familiar, and based on his experience, he knew that people sometimes carry drugs in that type of bag.

Although Womack admitted that the object in Lovelace's pocket did not feel like a gun, that he did not know what was in the bag, and that he did not have a search warrant, Womack nevertheless reached into the defendant's pocket and retrieved the bag. The substance in the bag was later identified through laboratory testing as crack cocaine. The analysis also identified some marijuana.³

During the search, Lovelace continued to lie on the ground and did not make any threatening gestures toward the officers. Womack acknowledged that he had not arrested Lovelace and did not have him in custody when he searched Lovelace. Rather, Womack insisted that he was detaining the defendant because of the open containers of beer, the bottle-throwing incident, and the odor of alcohol that he noticed when speaking with Lovelace. However, Womack admitted that he could not determine whether the odor of alcohol was coming from the defendant.

Womack did not actually arrest Lovelace until after he retrieved the bag from the defendant's pocket. Lovelace was then arrested for possession of marijuana and possession with intent to distribute cocaine, but was not charged with any alcohol-related offense.⁴ In fact, no one else standing on the premises of the store with Lovelace was charged with any violation of law despite the open bottles of beer that Womack observed. The other individuals were all released after being identified.

ANALYSIS

Pursuant to the remand order issued by the Supreme Court of the United States, we must consider the constitutionality of the search of Lovelace's person in light of the Supreme Court's decision in Knowles. Accordingly, we will discuss that decision before addressing the arguments presented by the parties in this case.

Knowles involved an Iowa statute providing that the issuance of a citation in lieu of an arrest "does not affect the officer's authority to conduct an otherwise lawful search." Iowa Code Ann. § 805.1(4) (West Supp.1997). Pursuant to that statute, an Iowa police officer, who had stopped Knowles for speeding, searched Knowles' car after issuing Knowles a citation in lieu of arresting him. During the search, the officer found a bag containing marijuana and a "pot pipe" under the driver's seat. The officer subsequently arrested Knowles for violating Iowa laws dealing with controlled substances. Knowles, 525 U.S. at 114, 119 S.Ct. at 486. The Iowa Supreme Court upheld the constitutionality of the search, but the Supreme Court reversed that holding. Id. at 115, 119 S.Ct. at 487.

In Knowles' challenge to the Iowa statute as applied to him, the Supreme Court framed the question presented as "whether such a procedure authorizes the officer, consistent[ with the Fourth Amendment, to conduct a full search of the car." 525 U.S. at 114, 119 S.Ct. at 486. The Court answered that question "no" because neither of the two historical rationales for the "search incident to arrest" exception, i.e., "(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," was sufficient to justify the officer's search of Knowles' car. Id. at 116, 119 S.Ct. at 487. Based on the facts in Knowles, the Court concluded that the threat to the officer's safety was not as great as the threat inherent in the context of a custodial arrest. Id. at 117, 119 S.Ct. at 487. It also determined that Iowa had not shown a need to preserve or discover evidence because no further evidence of excessive speed existed once Knowles was stopped for speeding and issued a citation. Id. at 118, 119 S.Ct. at 488.

Although asked to do so, the Court refused to extend the "bright-line rule" established in United States v. Robinson, 414 U.S. 218, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973), to a "search incident to citation." Knowles, 525 U.S. at 118, 119 S.Ct. at 488. The "bright-line rule" allows a police officer to conduct a full field-type search of the person incident to a lawful custodial arrest. Robinson, 414 U.S. at 235, 94 S.Ct. 467. The Court in Robinson determined that such a search is permitted as "an exception to the warrant requirement of the Fourth Amendment," and is "also a `reasonable' search under that Amendment." Id. In so holding, the Court stated that

[t]he authority to search the person incident to a lawful custodial arrest, while based upon the need to disarm and to discover evidence, does not depend on what a court may later decide was the probability in a particular arrest situation that weapons or evidence would in fact be found upon the person of the suspect.

Id. In New York v. Belton, 453 U.S. 454, 101 S.Ct. 2860, 69 L.Ed.2d 768 (1981), the Supreme Court extended the "bright-line rule" to a search of the passenger compartment of an automobile when such a search is conducted as "a contemporaneous incident" of a lawful custodial arrest of an occupant of the automobile. Id. at 460, 101 S.Ct. 2860. See Glasco v. Commonwealth, 257 Va. 433, 513 S.E.2d 137 (1999)

.

In declining to extend the "bright-line rule" to a "search incident to citation," the Court in Knowles compared a routine traffic stop to a "Terry stop" because such a traffic stop is a "relatively brief encounter," unlike the extended exposure attending an actual custodial arrest. Knowles, 525 U.S. at 117, 119 S.Ct. at 488. However, the Supreme Court recognized that the concern for officer safety is not absent in a routine traffic stop and may justify some additional intrusion. However, by itself, it does not warrant the greater intrusion accompanying "a full field-type search." Id. at 117, 119 S.Ct. at 488. Summarizing, we have no doubt, based on Knowles, that the Robinson "bright-line rule" does not apply to an encounter similar to a routine traffic stop in which a police officer issues only a citation or summons. Because the nature and duration of such an encounter are significantly different and less threatening than in the case of an officer effecting a custodial arrest, the rationales justifying a full field-type search are not sufficient to authorize such a search incident to the issuance of a citation. When a police officer issues a citation or summons in lieu of a custodial arrest, the officer can nevertheless impose some further intrusions, consistent with the Fourth Amendment, if either historical rationale for the "search incident to arrest" exception is present. We believe that the scope of these further intrusions is limited to what is necessary to answer the concerns raised by the presence of either...