PRESENT: All the Justices
BRADLEY WILLIAM MCGHEE
OPINION BY
v. Record No. 091274 JUSTICE WILLIAM C. MIMS
November 4, 2010
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal we review a conviction for possession of
cocaine with the intent to distribute. We consider whether
police officers had probable cause to arrest appellant Bradley
William McGhee (“McGhee”) for violating Code § 18.2-388 (public
intoxication) and whether the officers conducted a valid search
of McGhee’s vehicle.
McGhee was convicted in a jury trial in the Circuit Court
for the City of Danville of public intoxication and possession
of cocaine with intent to distribute. He was sentenced to a
$250 fine for public intoxication and to 10 years imprisonment
and a $5000 fine for possession with intent to distribute.
McGhee appealed his convictions to the Court of Appeals.
He argued that there was no probable cause to arrest him for
public intoxication and the vehicle search violated his Fourth
Amendment rights. The Court of Appeals denied McGhee’s
petition, holding that there was probable cause and the vehicle
search was a valid search incident to arrest. We awarded
McGhee an appeal.
We will state the evidence in the light most favorable to
the Commonwealth, the prevailing party in the circuit court. 1
Jones v. Commonwealth, 279 Va. 52, 55, 688 S.E.2d 269, 270
(2010). On the evening of December 18, 2007, Officer Karen
Dalton of the Danville Police Department was on patrol. At
11:15 p.m. she observed two vehicles parked beside a
restaurant. The headlights of one vehicle were on and its
brake lights glowing. A person subsequently identified as
McGhee was visible in the driver’s seat. After learning that
the restaurant had closed at 9:30 p.m., she exited her cruiser
and approached the vehicle. She then saw a female passenger
lift her head out of McGhee’s lap. As she reached the vehicle,
McGhee held his license and the vehicle’s registration out the
window.
Officer Dalton testified that as she spoke with McGhee
“[t]here was a very strong odor of alcohol coming from his
breath. Slurred speech and his eyes were very bloodshot.”
Officer Dalton returned to her patrol car to process
McGhee’s license and registration information. As she was
doing so, other officers arrived. She then approached McGhee
again and informed him he was under arrest for public
intoxication. McGhee refused to exit the vehicle and became
1
These facts are taken from the hearing on the motion to
suppress.
2
“[v]ery belligerent” and “[v]ery loud, yelling, screaming.” As
officers extracted him from the vehicle and subdued him, McGhee
threatened repeatedly that he had a gun. Officer Dalton patted
him down but did not discover a firearm. She then searched
“just the area of where he was sitting” in the vehicle. 2
Behind the driver’s seat she found a small torn piece of
plastic that she identified as packaging for crack cocaine.
Over the visor of the driver’s seat she found a neatly folded
five-dollar bill, which field-tested positive for cocaine.
Thereafter, she recovered a tissue that contained a large
amount of cocaine from the glove box, and she recovered a book
bag that contained a large amount of cocaine, digital scales,
batteries, a box of plastic sandwich bags, scissors, and baking
soda from the back seat.
After performing the search, Officer Dalton filled out an
inventory towing report. She testified it was the policy of
Danville police to fill out an inventory report when a car was
left unattended by virtue of taking a person into custody.
McGhee filed a motion to suppress in which he asserted
that Officer Dalton lacked probable cause to arrest and the
inventory search was not consistent with police procedure.
2
The passenger in McGhee’s vehicle was not in custody.
Based upon McGhee’s threats, Officer Dalton could not know
whether there was a firearm in the passenger compartment
accessible to the passenger.
3
Following a hearing, the trial court denied the motion. The
trial court did not rule on the inventory search, since it held
that the search was a valid search incident to arrest. McGhee
did not object to this ruling contemporaneously or by noting an
objection to the order denying his motion to suppress.
ANALYSIS
McGhee now argues that the trial court erred in denying
the motion to suppress the evidence because there was no
probable cause for the arrest and because the search of the
vehicle was invalid under both the inventory and search
incident to arrest exceptions to the Fourth Amendment warrant
requirement.
We previously have explained the standard of review for
rulings denying a motion to suppress for violation of a
person’s Fourth Amendment rights:
The burden is on the defendant to show that the
trial court committed reversible error. We are
bound by the trial court’s factual findings
unless those findings are plainly wrong or
unsupported by the evidence. We will review the
trial court’s application of the law de novo.
Whitehead v. Commonwealth, 278 Va. 300, 306-07, 683 S.E.2d 299,
301 (2009) (quoting Malbrough v. Commonwealth, 275 Va. 163,
168-69, 655 S.E.2d 1, 3 (2008)).
A. PROBABLE CAUSE FOR ARREST
4
The Fourth Amendment guarantees, in relevant part, “[t]he
right of the people to be secure in their persons, houses,
papers, and effects, against unreasonable searches and
seizures.” U.S. Const. amend. IV. In Virginia, a police
officer may arrest a person without a warrant if the officer
has probable cause to believe he committed a crime in the
officer’s presence. Code § 19.2-81(B).
We have explained that “probable cause exists when the
facts and circumstances within the officer’s knowledge, and of
which he has reasonably trustworthy information, alone are
sufficient to warrant a person of reasonable caution to believe
that an offense has been or is being committed.” Jones, 279
Va. at 59, 688 S.E.2d at 273 (internal quotation marks
omitted).
Code § 18.2-388 states, in relevant part, that “[i]f any
person . . . is intoxicated in public . . . he shall be deemed
guilty of a Class 4 misdemeanor.” Code § 4.1-100 defines
“intoxicated” as “a condition in which a person has drunk
enough alcoholic beverages to observably affect his manner,
disposition, speech, muscular movement, general appearance or
behavior.”
This Court has held that “mere odor of alcohol on one’s
breath” is insufficient as a matter of law to prove
intoxication. Hill v. Lee, 209 Va. 569, 572, 166 S.E.2d 274,
5
276 (1969). However, ”the odor of alcohol on a person’s breath
coupled with other circumstances, such as those indicated in
the language of the statute [predecessor to Code § 4.1-100],
will be sufficient to support a finding of intoxication.” Id.
Relying on United States v. Brown, 401 F.3d 588 (4th Cir.
2005), McGhee argues that Officer Dalton lacked probable cause
to arrest him for being intoxicated in public because he was
not visibly impaired. In that case, the United States Court of
Appeals for the Fourth Circuit held that Virginia law requires
evidence of physical impairment to establish probable cause.
Id. at 597-98.
Assuming without deciding that Code § 18.2-388 requires
physical impairment, Officer Dalton in fact observed signs of
physical impairment in McGhee. In addition to the strong odor
of alcohol coming from his breath and his very bloodshot eyes,
McGhee exhibited slurred speech as he talked with her.
Consequently, Officer Dalton had probable cause to believe that
McGhee had consumed enough alcohol to visibly affect his
“manner, disposition, speech, muscular movement, general
appearance or behavior.” Code § 4.1-100.
B. SEARCH OF VEHICLE
McGhee argued to the trial court that the search of his
vehicle was an improper inventory search. He did not assert
the alleged invalidity of a search incident to arrest at that
6
time. However, both the trial court and the Court of Appeals
declined to rule on the inventory search argument. Rather,
both ruled the search was a valid search incident to arrest.
On appeal, McGhee argues that under Arizona v. Gant, 556
U.S. ___, 129 S.Ct. 1710 (2009), published after his
conviction, the search was not within the search incident to
arrest exception to the warrant requirement. We recognize that
under Gant vehicular searches incident to arrest are limited to
situations where the arrestee is unsecured and within reaching
distance of the passenger compartment at the time of the
search, or where it is “ 'reasonable to believe evidence
relevant to the crime of arrest might be found in the vehicle.’
”Id. at ___, 129 S.Ct. at 1719 (quoting Thornton v. United
States, 541 U.S. 615, 632 (2004)).
However, we need not apply the holding in Gant because
McGhee did not challenge the search incident to arrest in the
trial court. 3 The Commonwealth concedes that the Gant decision
3
McGhee did not set forth this argument as a ground in his
written suppression motion. See Code § 19.2-266.2. While a
trial court may, for good cause shown and in the interests of
justice, grant leave for a defendant to amend a motion to
suppress, Wilson v. Commonwealth, 220 Va. 26, 32, 255 S.E.2d
464, 469 (1979); Schmitt v. Commonwealth, 262 Va. 127, 145-46,
547 S.E. 2d 186, 199 (2001), McGhee did not request leave to
amend. Likewise he did not object to the trial court’s ruling,
either contemporaneously or when the order denying his motion
to suppress was entered.
McGhee first asserted the invalidity of the search
incident to arrest based on Gant in his November 24, 2008
7
applies retroactively “to all convictions that were not yet
final at the time the decision was rendered.” United States v.
Johnson, 457 U.S. 537, 562 (1982). However, McGhee cannot
invoke Gant on appeal when he did not object to the search
incident to arrest below. Rule 5:25; Commonwealth v. Jerman,
263 Va. 88, 94, 556 S.E.2d 754, 757 (2002) (“The perceived
futility of an objection does not excuse a defendant’s
procedural default at trial.”).
The holding of the Court of Appeals, that the passenger
compartment search was justified as incident to arrest, was
correct when it was rendered. At that time, prior to the Gant
decision, the only two requirements for a valid search incident
to arrest of the passenger compartment of a vehicle were: “(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.” Glasco v. Commonwealth, 257 Va.
433, 438, 513 S.E.2d 137, 140 (1999). See also Thornton v.
United States, 541 U.S. 615, 623 (2004).
As discussed above, McGhee “was the occupant of the
vehicle that was searched,” 257 Va. at 438, 513 S.E.2d at 140,
and was the subject of a lawful custodial arrest for public
petition to the Court of Appeals. He explained that the
Supreme Court of the United States had heard argument in Gant
in October 2008, but had not yet published its decision. The
case was decided April 21, 2009.
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intoxication. Therefore we find that the trial court and the
Court of Appeals properly applied then existing law. Officer
Dalton’s search of McGhee’s vehicle was a proper search
incident to arrest, as McGhee was in custody and was an
occupant of the vehicle. 4 See id.
We therefore will affirm the judgment of the Court of
Appeals.
Affirmed.
4
Because we find that the search incident to arrest was
valid under then existing law, we need not consider McGhee’s
challenge to the inventory search of his vehicle. See Air
Courier Conference v. American Postal Workers Union, 498 U.S.
517, 531 (1991) (Stevens, J., concurring) (faithful adherence
to the doctrine of judicial restraint warrants decision of
cases “on the best and narrowest ground available”).
9