Murphy v. Com.

• Decision Date: 26 February 2002
• Docket Number: Record No. 2626-00-1.
• Citation: 37 Va. App. 556,559 S.E.2d 890
• Parties: Phillip Jerome MURPHY v. COMMONWEALTH of Virginia.
• Court: Virginia Court of Appeals

559 S.E.2d 890

37 Va. App. 556

Phillip Jerome MURPHY v. COMMONWEALTH of Virginia.

Record No. 2626-00-1.

Court of Appeals of Virginia, Chesapeake.

February 26, 2002.

S. Jane Chittom, Appellate Defender (Public Defender Commission, on briefs), for appellant.

Eugene Murphy, Assistant Attorney General (Randolph A. Beales, Attorney General, on brief), for appellee.

Present: BRAY, FRANK and AGEE, JJ.

AGEE, Judge.

Phillip Jerome Murphy ("Murphy" or "the appellant") was convicted in a Southampton County Circuit Court bench trial of possession of heroin with intent to distribute, second or subsequent offense, in violation of Code § 18.2-250(C), and possession of cocaine with intent to distribute, second offense, in violation of Code § 18.2-248(C). The trial court denied the appellant's pretrial motion to suppress evidence seized after a cautionary frisk of his person. On appeal, he argues that the weapons frisk was unlawful and any evidence obtained as a result of the frisk should have been suppressed. In the alternative, he argues that if the frisk was lawful, the police exceeded the scope of a patdown search for weapons by removing an object from his pocket and that the "plain feel" doctrine does not apply. Murphy also contends the police had no lawful basis to remove certain objects from his mouth. We disagree and affirm the judgment of the trial court.

I. Background

On appeal, the appellant bears the burden to establish that denying the motion to suppress was reversible error. The issues of whether a seizure occurred and whether a frisk for weapons was constitutionally valid involve mixed questions of law and fact, which we review de novo on appeal. See McGee v. Commonwealth, 25 Va.App. 193, 197-98, 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)). "In performing such analysis, we are bound by the trial court's findings of historical fact unless `plainly wrong' or without evidence to support them...." Id. at 198, 487 S.E.2d at 261 (citing Ornelas, 517 U.S. at 699,

116 S.Ct. at 1663). We view the evidence in the light most favorable to the prevailing party at trial, the Commonwealth in this instance. See Greene v. Commonwealth, 17 Va.App. 606, 608, 440 S.E.2d 138, 139 (1994).

Viewed in this light, the evidence at the suppression hearing established that on September 21, 1999, Officer Harvey of the Franklin Police Department, along with other officers, executed a search warrant for the "entire residence at 410 Hall Street," for marijuana, cocaine, heroin, firearms and a "black male named Eric Smith." The search warrant did not authorize the search of any other individuals found on the premises.

Upon entry to the residence, police found five persons present on the premises. Officer Harvey ordered Murphy, then seated on a couch, to lie on the floor with his arms stretched away from his body. Murphy complied and was subsequently handcuffed, "to ensure that he couldn't reach anything." "After the cuffing had occurred a pat-down for [the] safety of [the officers] in the area for weapons was conducted" pursuant to Franklin Police Department practice on the execution of search warrants. Neither Officer Harvey nor any of the other officers knew Murphy, a black male, or Eric Smith.

As Officer Harvey performed the frisk, he detected a bulge in Murphy's left front pants pocket. He knew "it to be a plastic baggy[,] which is a common way through my training and experience as a law officer that marijuana is packaged." The officer testified that he believed the bulge to be marijuana, so he retrieved the item. It appeared on inspection to be marijuana, and Murphy was placed under arrest.

After Murphy was arrested, another officer, Sergeant Welch, asked Murphy a question. Murphy replied in a muffled voice. The officers then noticed the appellant "was speaking in an unusual manner as if he had his mouth full of something." The officers physically forced Murphy to spit the objects out of his mouth. The officers recovered a folded one-dollar bill, seven blue envelope type packages and ten white rock-like substances. Analysis of the substances disclosed 8.02 grams of cocaine and 0.308 grams of heroin,

II. Analysis

On appeal, Murphy contends Officer Harvey was not entitled to detain him or subject him to a frisk and, therefore, the marijuana evidence was seized in violation of the Fourth Amendment and should have been suppressed. In the alternative, he avers the officer exceeded the scope of a weapons frisk by seizing an object that was clearly not a weapon. For the following reasons, we disagree with Murphy's contentions and hold he was lawfully detained and frisked and that the subsequent seizure of contraband was also lawful.

A. The Detention

The police officers lawfully detained Murphy, an occupant of a private residence being searched for narcotics and firearms pursuant to a valid search warrant.¹ It is well established that "a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted." Michigan v. Summers, 452 U.S. 692, 705, 101 S.Ct. 2587, 2595, 69 L.Ed.2d 340 (1981) (footnotes omitted). Among the "legitimate law enforcement interest[s]" in detaining the occupants

is the interest in minimizing the risk of harm to the officers.... [T]he execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence. The risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.

Id. at 702-03, 101 S.Ct. at 2594 (citation and footnote omitted). Once Murphy was detained, Officer Harvey was entitled to take reasonable steps under the prevailing circumstances to protect the safety of the officers and everyone else in the house.²See generally Welshman v. Commonwealth, 28 Va.App. 20, 502 S.E.2d 122 (1998) (en banc)

.

B. The Frisk

Murphy was subjected to a frisk for weapons in the interest of the officers' safety. Whether this action was lawful, in the context of executing a search warrant in a private residence, where the search warrant does not name the individual frisked, is a question of first impression in the Commonwealth. Upon review, we hold that the protective frisk was lawful.

1. Application of the Fourth Amendment

The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

See also Va. Const. art. 1, § 10. In general terms, the Fourth Amendment requires a seizure or subsequent search of a person to be based on probable cause. See Dunaway v. New York, 442 U.S. 200, 99 S.Ct. 2248, 60 L.Ed.2d 824 (1979)

. Murphy was not named in the search warrant, nor was there a direction in the warrant to search unnamed individuals found on the premises. Murphy's presence on the premises when the search warrant was executed would not, alone, provide probable cause to justify a full search of his person. See

Ybarra v. Illinois, 444 U.S. 85, 100 S.Ct. 338, 62 L.Ed.2d 238 (1979); Hayes v. Commonwealth, 29 Va.App. 647, 514 S.E.2d 357 (1999).

However, the protective frisk of Murphy was not a full search. Such a frisk is permissible under the Fourth Amendment's first prong, the "general proscription against unreasonable searches and seizures," Terry v. Ohio, 392 U.S. 1, 20, 88 S.Ct. 1868, 1879, 20 L.Ed.2d 889 (1968) (emphasis added). The Fourth Amendment does not proscribe reasonable searches and seizures. See generally Michigan v. Long, 463 U.S. 1032, 103 S.Ct. 3469, 77 L.Ed.2d 1201 (1983)

; Terry, 392 U.S. 1,

88 S.Ct. 1868,

20 L.Ed.2d 889; Hatcher v. Commonwealth, 14 Va.App. 487, 419 S.E.2d 256, 258-59 (1992).

2. Reasonableness of a Protective Frisk

In assessing reasonableness, the Supreme Court of the United States has said:

it is necessary "first to focus upon the governmental interest which allegedly justifies official intrusion upon the constitutionally protected interests of the private citizen," for there is "no ready test for determining reasonableness other than by balancing the need to search [or seize] against the invasion which the search [or seizure] entails." Camara v. Municipal Court, 387 U.S. 523, 534-535, 536-537, 87 S.Ct. 1727, 1734, 1735, 18 L.Ed.2d 930 (1967). And in justifying the particular intrusion the police officer must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant that intrusion.

Terry, 392 U.S. at 20-21, 88 S.Ct. at 1879-80 (footnote omitted).

Applying these principles to the case at bar, we recognize the governmental interest involved as being the safety of law enforcement officers who are assigned an inherently dangerous task: to execute a search warrant for narcotics and firearms in a private residence.

In Terry, the Supreme Court addressed whether an investigatory detention and a contemporaneous protective frisk for a weapon were permissible. Id. at 15, 88 S.Ct. at 1876-77. The Court, recognizing the "long tradition of armed violence" by criminals and the necessity of an officer to assure himself that an individual at close range is not armed with a weapon, held that it is permissible in certain instances for an officer to conduct a protective, minimally intrusive frisk.

[W]e cannot blind ourselves to the need for law enforcement officers to protect themselves and other prospective victims of violence in situations where they may lack probable cause for an arrest. When an officer is justified in

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