Present: All the Justices
JOHN DAVID LOVELACE
v. Record No. 981447 OPINION BY JUSTICE CYNTHIA D. KINSER
November 5, 1999
COMMONWEALTH OF VIRGINIA
ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES
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 (1998). Lovelace v. Virginia, ___ U.S. ___,
119 S.Ct. 1751 (1999). Because we conclude that the search
1
Lovelace also claimed the evidence was insufficient
to prove he intended to distribute cocaine. That issue is
not before us.
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
2
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
2
Womack later testified that the bottle hit the car as
he was putting Lovelace “down on the ground.”
3
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
3
It is not apparent from the record whether the
marijuana was in the bag with the cocaine or was discovered
elsewhere on Lovelace’s person.
While searching Lovelace, Womack also found $121.00
in a black pouch and $171.30 in the defendant’s pocket.
4
Womack’s testimony was unclear with regard to what
charges he placed against Lovelace at the scene. However,
a magistrate issued warrants for possession with intent to
distribute cocaine and possession of marijuana during the
early morning hours on August 24, 1996. A grand jury
subsequently indicted Lovelace for possession with intent
4
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
______________________
to distribute cocaine. After Lovelace was found guilty of
the marijuana charge in the Halifax County General District
Court, he appealed, and both charges were tried together in
circuit court.
5
officer subsequently arrested Knowles for violating Iowa
laws dealing with controlled substances. Knowles, 525 U.S.
at ___, 119 S.Ct. at 486. The Iowa Supreme Court upheld
the constitutionality of the search, but the Supreme Court
reversed that holding. Id. at ___, 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 ___, 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 ___, 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 ___, 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
6
stopped for speeding and issued a citation. Id. at ___,
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 (1973), to a “search incident to
citation.” Knowles, 525 U.S. ___, 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. 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 (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. See Glasco v. Commonwealth, 257 Va. 433, 513
S.E.2d 139 (1999).
7
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 ___, 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 ___, 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
8
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 historical
rationale. In other words, an encounter between a police
officer and an individual that is similar to a routine
traffic stop and results in the issuance of a citation or
summons may involve some degree of danger to the officer or
some need to preserve or discover evidence sufficient to
warrant an additional intrusion, but it will not
necessarily justify a full field-type search.
Having analyzed Knowles, we now turn to the parties’
arguments. Lovelace contends that the search of his person
violated the Fourth Amendment because he was not subject to
a custodial arrest. He asserts that, if he had been
charged with drinking an alcoholic beverage in public in
violation of Code § 4.1-308, the officer could have issued
only a summons pursuant to Code § 19.2-74(A)(2). 5
Continuing, Lovelace argues that neither a concern for
5
Code § 19.2-74(A)(2) provides that “[w]henever any
person is detained by . . . an arresting officer for a
violation . . . of any provision of this Code, punishable
as a Class 3 or Class 4 misdemeanor or any other
misdemeanor for which he cannot receive a jail sentence, .
. . the arresting officer shall take the name and address
of such person and issue a summons . . . [and] shall
forthwith release him from custody.”
9
officer safety nor a need to preserve or discover evidence
existed during his encounter with Sweeney and Womack.
Thus, he contends that Womack had no basis upon which to
justify the extensive search that he conducted.
The Commonwealth, however, contends that the officers
had probable cause to arrest Lovelace for drinking an
alcoholic beverage in public and thus could conduct a
search incident to arrest. It is the Commonwealth’s
position that the presence of probable cause for an arrest,
rather than an actual custodial arrest, determines the
reasonableness of a search. While conceding that Code
§ 19.2-74(A)(2) generally requires that a suspect be
released from custody when charged with a Class 4
misdemeanor, the Commonwealth asserts that a full search
incident to arrest is nonetheless justified in that
situation because “[a]n officer . . . does not know upon
making the arrest whether he will, in fact, be releasing
the individual or formally taking him into custody.”
With regard to the effect of the decision in Knowles,
the Commonwealth first argues that Knowles is inapplicable
because Lovelace was, in fact, in custody when Womack
searched him. The Commonwealth premises this argument on
the language of Code § 19.2-74(A)(2) providing that an
individual is released “from custody” after the officer
10
takes the name and address of the person and issues a
summons.
In the alternative, the Commonwealth argues that, if
Knowles applies to the instant case, both of the historical
rationales for a “search incident to arrest” were present.
The Commonwealth states that officer safety was a concern
because the encounter with Lovelace occurred in an “open
air drug market,” there were several people assembled on
the parking lot of the store, and a bottle had been thrown
by someone. The Commonwealth also posits that Womack
needed to discover evidence, such as cash register receipts
to establish a recent purchase of alcoholic beverages by
Lovelace since the bottle he had been holding could not be
recovered from the scene. Having conceded at oral argument
that it must demonstrate that Womack had a right to conduct
a full search incident to arrest in order to prevail in
this appeal, the Commonwealth further contends that
whenever either of the historical rationales for search
incident to arrest is present, an officer can conduct a
full field-type search even though only a citation or
summons is issued. We do not agree with any of the
Commonwealth’s arguments.
Initially, we conclude that Knowles is applicable.
The encounter between Lovelace and the officers, while not
11
involving a traffic offense, was nonetheless similar in
nature and duration to a routine traffic stop. We reach
this conclusion primarily because the initial reason for
detaining Lovelace was his alleged commission of a Class 4
misdemeanor for which the issuance of a summons was
authorized under Code § 19.2-74(A)(2). Only if Lovelace
had failed or refused to discontinue the unlawful act could
the officer have effected a custodial arrest and taken the
defendant before a magistrate. Code § 19.2-74(A)(2).
However, there is no evidence in the record that Lovelace
acted in such a manner. The fact that the officers could
have issued only a summons for the alcohol-related offense
also negates the Commonwealth’s argument that the existence
of probable cause to charge Lovelace with drinking an
alcoholic beverage in public allowed Womack to search him.
After Knowles, an “arrest” that is effected by issuing a
citation or summons rather than taking the suspect into
custody does not, by itself, justify a full field-type
search.
Nor do we believe that Code § 19.2-74(A)(2)
contemplates a custodial situation equivalent to an actual
custodial arrest. Under that statute, a suspect is
detained, or in the custody of the police officer, only
long enough for the officer to take down the name and
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address of the person and issue a summons. One of the
reasons that the Knowles Court did not extend the Robinson
“bright-line rule” to a “search incident to citation” was
because the duration of the encounter between a police
officer and a defendant is “relatively brief” when the
officer issues a citation. Thus, the threat to officer
safety is less.
Next, assuming without deciding that there was a need
to discover evidence or a threat to the officers’ safety,
we conclude that the extent of Womack’s search exceeded the
scope necessary to accomplish either of those objectives.
Once Womack conducted his “patdown” of Lovelace and felt
nothing similar to a weapon, any reasonable concern for
officer safety was resolved. Likewise, Womack did not
testify that he felt something that was evidence related to
Lovelace’s drinking an alcoholic beverage in public.
Instead, he felt a “squooshy” bag. In other words, Womack
did not “reasonably believe” that the bag was either a
weapon or evidence related to Lovelace’s alleged alcohol
offense. Lansdown v. Commonwealth, 226 Va. 204, 213, 308
S.E.2d 106, 112 (1983), cert. denied, 465 U.S. 1104 (1984).
Thus, Womack’s subsequent reach into Lovelace’s pocket to
retrieve the “squooshy” bag was not in furtherance of
either officer safety or the preservation of evidence.
13
Once Womack satisfied himself that Lovelace did not have a
weapon or evidence of an alcohol offense on his person, the
officer had no basis to continue his search. See Harris v.
Commonwealth, 241 Va. 146, 152, 400 S.E.2d 191, 195 (1991)
(Terry “patdown” must cease once officer determines that
individual does not possess weapon).
Based on the Supreme Court’s decision in Knowles, we
therefore conclude that the search of Lovelace was not
consistent with the Fourth Amendment. Accordingly, the
Court of Appeals erred in upholding the circuit court’s
denial of Lovelace’s motion to suppress the evidence
obtained during the search. For these reasons, we will
reverse the judgment of the Court of Appeals, dismiss the
indictment charging Lovelace with possession with intent to
distribute cocaine, and dismiss the warrant charging
Lovelace with possession of marijuana. 6
Reversed and dismissed.
6
In Rhodes v. Commonwealth, 29 Va. App. 641, 513
S.E.2d 904 (1999), the Court of Appeals found a “search
incident to citation” unreasonable under the Fourth
Amendment, based on the decision in Knowles. Although the
decision in Rhodes was handed down before the Supreme Court
of the United States remanded the instant case to this
Court, the Court of Appeals acknowledged that, to the
extent that its prior decision in Lovelace is inconsistent
with the decision in Knowles, “Lovelace is no longer a
viable precedent.” Rhodes, 29 Va. App. at 643 n.1, 513
S.E.2d at 905. While that acknowledgement is correct in
14
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light of our decision today, it does not afford any relief
to Lovelace.
15