Parady v. Commonwealth
| Docket Number | 0744-22-4 |
| Decision Date | 05 July 2023 |
| Parties | RENEE MICHELLE PARADY v. COMMONWEALTH OF VIRGINIA |
| Court | Virginia Court of Appeals |
FROM THE CIRCUIT COURT OF CULPEPER COUNTY Dale B. Durrer, Judge
Ryan J. Rakness (Rakness & Wright PLC, on brief), for appellant.
Rebecca M. Garcia, Assistant Attorney General (Jason S Miyares, Attorney General, on brief), for appellee.
Present: Judges Beales, Fulton and Lorish Argued at Fredericksburg, Virginia
The Commonwealth bears the burden of proving that a warrantless search fits under an exception to the warrant requirement of the Fourth Amendment. While the exceptions are many, mere probable cause to arrest is not one of them. Nor can a search be incident to an arrest when the arrest comes two months after the search. As such, we must reverse and remand for further proceedings.
BACKGROUND[1]
Around 1:30 a.m. on January 28, 2021, Culpeper County Sheriff's Deputy Dustin Tharp stopped a pickup truck with three occupants: Kenneth Hawkins, Renee Parady, and Leslie Pullen.[2] Deputy Tharp pulled over the truck after running the license plates and discovering that the plates belonged to a different vehicle. He ordered Hawkins, the driver, to exit the truck because he had an outstanding capias for his arrest. Hawkins told Deputy Tharp he knew about the capias, but had not turned himself in because he had been quarantining after getting sick in a household with people who had COVID-19, including Parady. Parady, the passenger sitting on the right side of the truck's bench seat, remained in the truck with Pullen, who sat in the middle of the bench. Parady was "extremely nervous." She told Deputy Tharp that she had "anxiety" because a Florida police officer had previously held her "against [her] will."
Deputy Tharp arrested Hawkins on the outstanding warrant. Deputies John Clubb and David Cole then arrived with a trained narcotics dog, and Deputy Tharp searched Hawkins incident to arrest without finding any contraband.[3] The dog conducted a "free air sniff" and "alerted" to the driver's side door of the truck. Hawkins said it was not his truck and denied that he or his passengers had recently purchased "dope." Deputy Tharp then removed Pullen from the truck. Deputy Tharp already knew Pullen-she was a police informant who had given him reliable information twice in the past. Deputy Tharp pulled her off to the side to search her while asking why the dog alerted. Pullen said, "[I]t's in her pussy." Deputy Tharp found no contraband on Pullen.
Deputy Tharp then approached Parady while she was still in the truck and said, "Do you want to give me what you've got?" Saying she had "nothing," Parady became distraught and apologized. At Deputy Tharp's direction, Parady got out of the truck with her arms raised, and Deputy Tharp then guided her and went to the rear of the truck. Deputy Tharp noticed that Parady squeezed her upper legs together as she moved as though she "may be concealing something in her pants." She was wearing what Deputy Tharp described as "yoga elastic style pants."
Once Parady's hands were on the back of the truck, Deputy Tharp prepared to search her and asked if she had "anything on her," which Parady denied, while starting to pat her own sides and saying she did not have pockets. Deputy Tharp told her "don't go reaching," and Parady immediately raised her hands, and then placed them on the truck with her feet spread apart, as the deputy directed.
After her legs were spread apart, Deputy Tharp immediately began to search the area between Parady's legs, moving his hand "credit [card] style" and felt "[s]omething abnormal" in the "groin area" within a second.[4] Deputy Tharp explained that he could feel that "there was an object in . . . the crotch area" that was not "a leg or a body part," although he could not determine whether the object was "hard" or "soft." Deputy Tharp said, "Do you want me to pull it out or do you want me to go write a search warrant and [have] them pull it out of you at the hospital?" Parady replied "what," and Deputy Tharp explained "what's in your pants or what's inside of you." Parady said her "headphone case" was inside her tights, but claimed, "I don't know what's in there." Deputy Tharp said, "I'm not dumb," and Parady repeated, "I swear on my kids I don't know what's in the case." Deputy Tharp then said "pull it out," and Parady replied "okay" and removed a black circular case with a zipper around it.
After Deputy Tharp finished searching Parady, he handcuffed her and told her she was "being detained." Deputy Clubb placed Parady inside a patrol car. Deputy Tharp then opened the headphone case and found it contained six capsules containing "white solid material," a tan rock inside a folded receipt, and a "ziplock bag with crystalline material." He then searched the truck and did not find any contraband. Deputy Tharp read Miranda[5] warnings to Parady and reiterated that she was "being detained." Parady told Deputy Tharp that she was "holding the drugs for a friend who lives in town." Parady also said that she had recently tested positive for COVID-19.
Deputy Tharp released Parady without charging her for possessing the suspected narcotics. He told Parady that the jail would not accept her due to her illness, but warned her, "That stuff's gonna get sent off to the lab, you were in possession of it, and I'm gonna come back and charge you." Subsequent laboratory testing established that the suspected narcotics contained Schedule I and II controlled substances. More than two months later, on April 2, 2021, Deputy Tharp arrested Parady for possessing the drugs. At a later hearing, Deputy Tharp testified that he did not arrest Parady during the traffic stop and explained that he "release[d]" her after "detain[ing]" her and that "she was not arrested until" months later, after "the lab results came back."
When asked why he searched Parady, Deputy Tharp testified that he was "looking for" drugs in her crotch based on what the other passenger, Pullen, had told him. When Pullen told him "it" was in Parady's genital region, Deputy Tharp testified that he understood "it" to mean narcotics. Deputy Tharp also explained that he searched Parady "[d]ue to the alert to the odor of narcotics within the vehicle that she was still sitting in when the certified canine alerted to the vehicle." When asked why he did not get a warrant, Deputy Tharp said, "I felt that with the . . . odor of the narcotics dog, based off of the statements, that I had reasonable suspicion of probable cause to believe she was concealing narcotics in her pants."
Parady moved to suppress the drugs, arguing that the warrantless search was unconstitutional.[6] The Commonwealth argued that the search was justified as a valid search incident to arrest because Deputy Tharp had probable cause to believe Parady possessed narcotics and performed a de facto arrest when he handcuffed Parady, placed her in the patrol car, and read her Miranda warnings. The Commonwealth further argued that even if Deputy Tharp had not actually arrested Parady, he could search her solely based on probable cause to arrest her for the possession of narcotics. Alternatively, the Commonwealth contended that exigent circumstances justified the search because "a reasonable officer in [Deputy Tharp's] position would have believed" that Parady was "concealing" contraband on her person that she intended to "remove[] or destroy[]."
In response, Parady asserted that the search incident to arrest exception could not justify the warrantless search of her person because (1) Deputy Tharp did not have probable cause to believe she possessed narcotics, (2) probable cause to arrest does not justify a warrantless search without a contemporaneous arrest, and (3) the search was not contemporaneous with her arrest. Parady also argued that exigent circumstances did not justify the search because "the scene [was] totally secure."
The trial court found "it's ludicrous to say" that Deputy Tharp could not "maintain the status quo to go get a search warrant," and rejected the exigent circumstances argument. After taking the other arguments under advisement, the court issued a letter opinion finding that "probable cause to search [a person] can exist independently of the probable cause to arrest (which contains the right to search incident to the arrest)." The trial court found that Deputy Tharp "had probable cause to search" Parady "based on the totality of the circumstances," including "[t]he dog's alert combined with Pullen's statements, the altered license plate on the truck and [Parady's] nervous demeanor." Thus, the trial court concluded that Deputy Tharp lawfully searched Parady's person based solely on probable cause to believe she possessed narcotics. Accordingly, the trial court denied the motion to suppress. Parady entered a conditional guilty plea for felony possession of a controlled substance, while reserving her right under Code § 19.2-254 to appeal the court's denial of her motion to suppress.
The Fourth Amendment protects individuals from unreasonable searches and seizures. U.S. Const. amend. IV. "[W]arrantless searches are per se unreasonable, subject to a few specifically established and well-delineated exceptions." Megel v Commonwealth, 262 Va. 531, 534 (2001). Deputy Tharp searched Parady without a warrant, thus "the Commonwealth ha[d] the burden of proving the legitimacy of [the] warrantless search and seizure." Reittinger v Commonwealth, 260 Va. 232, 235-36 (2000). Now appealing the trial court's denial of her motion to suppress, Parady "bears the burden of establishing that reversible error occurred." Mason v. Commonwealth, 291 Va. 362, 367 (2016). We are "bound by ...
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