Murphy v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Bray, Frank and Agee
Argued at Chesapeake, Virginia

PHILLIP JEROME MURPHY
OPINION BY
v. Record No. 2626-00-1 JUDGE G. STEVEN AGEE
FEBRUARY 26, 2002
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF SOUTHAMPTON COUNTY
William H. Hodges, Judge Designate

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.

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 pat-down 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 (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). 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

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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
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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 (1981) (footnotes

omitted). Among the "legitimate law enforcement interest[s]" in

detaining the occupants

1
Murphy raised no challenge to the validity of the search
warrant.
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 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 (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. 2 See 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.

2
In determining what measures were appropriate, the
officers were entitled to consider the fact that they were in a
private residence in which a magistrate had found probable cause
to believe was a site for narcotics distribution. See generally
Welshman v. Commonwealth, 28 Va. App. 20, 34, 502 S.E.2d 122,
129 (1998) (en banc). Appropriate actions would include, among
other things, having Murphy and the other occupants lie prone
and extend their arms from their bodies so their hands would be
in plain view. See id. at 35, 502 S.E.2d at 129. It was also
permissible to keep the occupants under guard. See Summers, 452
U.S. 692.
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 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 (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 (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 (1968) (emphasis added). The Fourth Amendment does not

proscribe reasonable searches and seizures. See generally

Michigan v. Long, 463 U.S. 1032 (1983); Terry, 392 U.S. 1;

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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
(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 (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. The Court,

recognizing the "long tradition of armed violence" by criminals

and the necessity of an officer to assure himself that an

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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 believing that the
individual whose suspicious behavior he is
investigating at close range is armed and
presently dangerous to the officer or to
others, it would appear to be clearly
unreasonable to deny the officer the power
to take necessary measures to determine
whether the person is in fact carrying a
weapon and to neutralize the threat of
physical harm.

Id. at 23-24.

[T]here must be a narrowly drawn authority
to permit a reasonable search for weapons
for the protection of the police officer,
where he has reason to believe that he is
dealing with an armed and dangerous
individual, regardless of whether he has
probable cause to arrest the individual for
a crime. The officer need not be absolutely
certain that the individual is armed; the
issue is whether a reasonably prudent man in
the circumstances would be warranted in the
belief that his safety or that of others was
in danger.

Id. at 27 (citations omitted).

Since Terry, the Supreme Court has applied the

reasonableness analysis to different fact situations with the

constant refrain that a limited, protective frisk for weapons

can be justified by the need for law enforcement officers to

protect themselves. See, e.g., Maryland v. Buie, 494 U.S. 325,
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333 (1990) (officers have an interest in self-protection which

can justify a protective sweep); Long, 463 U.S. at 1049

(protection of police and others can justify protective searches

when police have a reasonable belief that an individual may pose

a danger); Pennsylvania v. Mims, 434 U.S. 106, 111 (1977) ("What

is at most a mere inconvenience cannot prevail when balanced

against legitimate concerns for the officer's safety."). There

is abundant, long-standing authority establishing that an

unreasonable search prohibited by the Fourth Amendment does not

arise when a law enforcement officer performs a protective

pat-down when he or she "'reasonably believes, based on specific

and articulable facts, that the [individual in the officer's

presence] might be armed and dangerous.'" Welshman, 28 Va. App.

at 34, 502 S.E.2d at 129 (quoting Phillips v. Commonwealth, 17

Va. App. 27, 30, 434 S.E.2d 918, 920 (1993)) (emphasis added);

see also Williams v. Commonwealth, 4 Va. App. 53, 66-67, 354

S.E.2d 79, 86 (1987) ("Once a police officer has [lawfully]

detained a suspect he may conduct a limited pat-down search for

weapons if he reasonably believes that the suspect might be

armed and dangerous.").

3. The Frisk of Murphy was Reasonable

Having established that a protective frisk is lawful where

the facts available at the time of the search allow a man of

reasonable caution to believe that the protective action is

warranted, we now examine the circumstances of this case to
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determine whether the frisk of Murphy was reasonable. Terry,

392 U.S. at 21.

Here, significantly, the house was being searched because a

magistrate determined that there was probable cause to believe

the house was the site of a narcotics trafficking operation and

that firearms were present and issued a search warrant

authorizing a search of the house and the seizure of narcotics

and firearms discovered. 3 See Williams, 4 Va. App. at 67, 354

S.E.2d at 86-87; see generally Ruffin v. Commonwealth, 13 Va.

App. 206, 409 S.E.2d 177 (1991). Murphy and four others were

present in the house when the warrant was executed. It was

reasonable to believe that he might have been involved in the

narcotics operation, and the officers knew from experience that

those involved in narcotics trafficking are often in possession

of firearms. "Firearms are as much 'tools of the trade' as are

most commonly recognized narcotics paraphernalia," United States

v. Oates, 560 F.2d 45, 62 (2d Cir. 1977), and "the execution of

a warrant to search for narcotics is the kind of transaction

that may give rise to sudden violence . . . ." Summers, 452

U.S. at 702.

A "man of reasonable caution" would have believed that it

was appropriate to subject Murphy to a brief frisk for weapons.

3
Although the "material facts constituting probable cause"
set forth in the affidavit given in support of the warrant made
no mention of firearms, the affiant specified "guns" among the
numerous items to be searched for.
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See generally Terry, 392 U.S. at 21-22. By conducting an

immediate frisk of Murphy, Officer Harvey acted to minimize

danger and to secure the area.

[E]ven though the officers who detained [the
appellant] had no information that he was
armed or that he had a past history of
violence, they acted reasonably when
conducting a protective pat-down search for
weapons in light of the fact that they had a
reasonable suspicion that [he] was presently
engaged in narcotics distribution. To hold
otherwise would be an invitation to violence
in what is always a potentially explosive
situation.

Williams, 4 Va. App. at 67, 354 S.E.2d at 87.

Murphy contends Ybarra, 444 U.S. 85, prohibits a police

officer from conducting a protective frisk during the execution

of a search warrant unless the individual is named in the

warrant or otherwise identified. We disagree.

The Supreme Court, in Ybarra, addressed whether it is

constitutionally permissible to stop and frisk a person present

in a public place where a narcotics search warrant is being

executed. In that case, police officers searched a bar pursuant

to a warrant regarding heroin trafficking, but which did not

authorize the search of anyone other than the named bartender.

During the execution of the search warrant, the police frisked

each of the bar's patrons. Heroin was found on Ybarra, a

patron. In holding that the search of Ybarra was not supported

by a reasonable belief that he was armed and presently

dangerous, the Supreme Court explained that the frisk of Ybarra
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was unjustified because the officers knew nothing about Ybarra

"except that he was present, along with several other customers,

in a public tavern at a time when the officers had reason to

believe that the bartender would have heroin for sale." Id. at

91. The Supreme Court noted that in a public bar, during

operation hours, it was just as likely that an individual was an

innocent patron as it was that he was there in furtherance of

the heroin trafficking operation.

We reject Murphy's contention that Ybarra is controlling.

The protective frisk of Murphy was not a generalized, cursory

search in a public place of business of the type limited by

Ybarra. The frisk of Murphy, by contrast, took place in a

private residence for which there was probable cause to believe

was used in narcotics trafficking and that firearms were

present. We have found such protective frisks in similar

circumstances reasonable and justified. See Ruffin, 13 Va. App.

at 208, 409 S.E.2d at 178.

The officers' duty required them to execute a search

warrant in a place fraught with the potential for sudden

violence. It was significantly more likely that Murphy was

associated with the illegal narcotics activity in the specific

private residence as compared to a random member of the public

found in a public bar during the execution of a search warrant.

See Hayes, 29 Va. App. at 655, 514 S.E.2d at 361. It was,

therefore, reasonable for Officer Harvey to fear that Murphy, an
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individual found in the private residence suspected of being the

location of narcotics trafficking, was armed, particularly where

the search warrant listed firearms as items to be searched for

and seized.

Our holding is consistent with decisions of other
4
jurisdictions that have considered the same issue. For

example, in People v. Thurman, 257 Cal. Rptr. 517 (Cal. Ct. App.

1989), a California appellate court balanced the governmental

interest in a search of an individual present on private

premises against the extent of the intrusion on the individual's

privacy. In Thurman, police officers obtained a warrant to

search a private apartment for drugs, narcotics paraphernalia,

and various documents. Id. at 518. When the officers entered

the apartment, they found Thurman sitting quietly and passively

on a sofa. Although the officers realized that the warrant did

4
Other jurisdictions utilizing the rationale we have
employed have upheld frisks of persons encountered during the
execution of a narcotics search warrant in a private residence.
See United States v. Jaramillo, 25 F.3d 1146 (2d Cir. 1994);
United States v. Reid, 997 F.2d 1576 (D.C. Cir. 1993); United
States v. Pace, 898 F.2d 1218 (7th Cir. 1990); People v.
Thurman, 257 Cal. Rptr. 517 (Cal. Ct. App. 1989); State v.
Harris, 384 S.E.2d 50 (N.C. 1989); State v. Zearley, 444 N.W.2d
353 (N.D. 1989); State v. Alamont, 577 A.2d 665 (R.I. 1990);
State v. Guy, 492 N.W.2d 311 (Wis. 1992), cert. denied, 509 U.S.
914 (1993). A few decisions, however, have disallowed the
protective frisks on essentially identical facts, holding that
an individual's "'mere presence' at a private residence being
searched pursuant to a search warrant cannot justify a frisk of
[his or her] person." State v. Broadnax, 654 P.2d 96, 101
(Wash. 1982); see also United States v. Harvey, 897 F.2d 1300
(5th Cir. 1990).

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not authorize a search of Thurman, one of the officers frisked

him for weapons.

The court determined that the governmental interest of

officer safety significantly outweighed the personal intrusion,

and held the search to be lawful. Id. at 520. The court

assessed the reasonableness of the officer's actions by weighing

the extent of the intrusion on the individual searched against

the safety concerns of law enforcement officials. Id. It found

the intrusion insignificant compared to the need of police

officers to protect themselves from potentially armed and

dangerous narcotics traffickers. Id. Accordingly, the court

concluded that law enforcement officers may lawfully frisk an

individual present in a private residence during the execution

of a search warrant for narcotics. Id. (conducting a protective

search in such circumstances is "manifestly reasonable," even if

the individual to be frisked does not appear threatening at the

moment).

The court viewed Ybarra as inapplicable to searches on

private premises for three reasons. Id. at 520-21. First, an

individual present in a residence where narcotics transactions

are taking place is likely to be involved in drug trafficking,

inasmuch as a private residence does not attract visitors off

the street as do public bars. Id. Second, private surroundings

which have been judicially determined as the probable site of

narcotics transactions are generally more dangerous than
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locations open to the general public, such as bars. Id.

Finally, suspected narcotics traffickers found in a residence

are more likely to be armed than are customers in a bar. Id. at

521.

Following the reasoning in Thurman, the Wisconsin Supreme

Court, in State v. Guy, 492 N.W.2d 311 (Wis. 1992), cert.

denied, 509 U.S. 914 (1993), upheld the search of a person on

private premises on the ground that Ybarra does not apply to

private premises searches. Id. at 316. In Guy, the police

obtained a warrant to search a house for cocaine, scales, other

indicia of narcotics trafficking crimes, and a man identified as

"John Doe." The next day, police officers entered the house to

execute the search warrant. Upon entry, the officers took the

persons present in the house, including Guy, a woman not named

in the warrant, to the front porch and handcuffed them. An

officer then frisked Guy even though she stood motionless and

did not appear armed. Id. at 312-13.

Employing a balancing test of reasonableness, the Guy court

noted that a magistrate had already determined that the officers

had probable cause to search the house, thereby supplying the

reasonable and articulable suspicion of criminal activity

required by Terry. Id. at 313-15. The court then emphasized

the danger involved in executing a warrant to search for

narcotics. Id. at 315-16. The court viewed the searching

officer's suspicion that Guy was armed as reasonable, based not
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upon a suspicion particular to anything Guy did in the officer's

presence, but on the officer's personal experience regarding the

violence associated with narcotics trafficking and the

reasonable inferences the officer could have drawn from the

facts surrounding the search. Id.

We find the reasoned analysis in Thurman and Guy

persuasive. Where police officers execute a search warrant for

narcotics at a location known for drug trafficking, pursuant to

an affidavit seeking authority to search for firearms and a

warrant permitting that search, a person of reasonable caution

would surely deem a protective frisk of the occupants necessary

for the safety of all concerned. We do not see such a weapons

frisk as falling within the ambit of a generalized cursory

search in a public place as prohibited by Ybarra.

Accordingly, we affirm the decision of the trial court that

Officer Harvey acted lawfully in conducting a protective frisk

of Murphy, and hold the protective weapons frisk did not violate

any protection afforded Murphy by the Fourth Amendment.

C. The Marijuana Seizure

In the alternative, Murphy contends the trial court erred

in failing to suppress the evidence as the marijuana recovered

from his pocket was seized outside the scope of Officer Harvey's

protective frisk. We disagree.

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 In Ruffin, 13 Va. App. 206, 409 S.E.2d 177, we upheld,

during a lawful weapons frisk, the seizure of narcotics

discovered on the defendant under the plain view doctrine.

The plain view doctrine, articulated in
Coolidge [v. New Hampshire, 403 U.S. 443
(1971)], permits the warrantless seizure of
private possessions where three requirements
are met. First, the "initial intrusion" of
the police officer must be lawful or he must
otherwise properly be in a position from
which he can view the location of the
seizure. Id. at 465-68. Second, the
discovery of the item seized must be
inadvertent. Id. at 470. Third, it must be
"immediately apparent" to the police officer
that the item he observes may be evidence of
a crime, contraband, or otherwise subject to
seizure. Id. at 466. In Horton v.
California, [496 U.S. 128] (1990), the
Supreme Court eliminated the necessity of
the inadvertence requirement. Thus, two
requirements must be met for the application
of the plain view doctrine. First, the
police officer must be lawfully present.
Second, it must be "immediately apparent" to
the police officer that the item to be
seized may be evidence of a crime,
contraband or otherwise subject to seizure.

Id. at 208-09, 409 S.E.2d at 178-79.

In Minnesota v. Dickerson, 508 U.S. 366 (1993), cited by

the Commonwealth as authority to uphold the decision of the

trial court in the case at bar, the Supreme Court upheld a

similar analysis. 5 See id. at 375-76.

If a police officer lawfully pats down a
suspect's outer clothing and feels an object
whose contour or mass makes its identity

5
Subsequently, the analysis has been termed the "plain feel
doctrine."

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 immediately apparent, there has been no
invasion of the suspect's privacy beyond
that already authorized by the officer's
search for weapons; if the object is
contraband, its warrantless seizure would be
justified by the same practical
considerations that inhere in the plain-view
context.

Id. Thus, if the contour or mass of the object makes its

identity as contraband immediately apparent, the officer may

lawfully seize it. 6

We have already held that Murphy was lawfully frisked, so

the first prong of the plain feel doctrine is met: the initial

intrusion was lawful. The inquiry then turns on whether it was

immediately apparent that the object discovered was contraband.

We hold that the seizure was lawful as Officer Harvey testified,

without contradiction, that he knew the bulge was a plastic

baggy and that he believed, based on his training and

experience, that it was marijuana. He identified the item when

he first felt it. There is no evidence in the record before us

that any additional manipulation of the baggy was necessary or

occurred. Officer Harvey's identification of the marijuana is

strikingly similar to the plain feel seizure in Ruffin:

The object detected by [the officer] was not
a facially innocent vessel of a type
employed by law-abiding citizens, on a daily
basis, for legitimate uses. It was, on the

6
This was the case in Ruffin, where the officer seized an
object inside the defendant's sock, as it was immediately
apparent that it was "an unnatural mass, carried in a manner of
concealment, consistent with the transportation of illegal
drugs." 13 Va. App. at 211, 409 S.E.2d at 180.
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 contrary, an unnatural mass, carried in a
manner of concealment, consistent with the
transportation of illegal drugs. The
circumstances surrounding the discovery, the
nature of the search warrant, . . . and the
discovery of the packet under the
[defendant's] sock gave [the officer]
probable cause to believe that it contained
illegal drugs and authorized its seizure.

13 Va. App. at 211, 409 S.E.2d at 180 (footnote omitted).

We are not persuaded by Murphy's contention, citing Harris

v. Commonwealth, 241 Va. 146, 400 S.E.2d 191 (1991), and Hayes,

29 Va. App. 647, 514 S.E.2d 357, that the plain feel doctrine

does not apply. We find Harris and Hayes distinguishable from

the case at bar and hold the trial court properly applied the

plain feel doctrine to the facts of this case. In Harris the

item seized was a film canister whose contents could not

possibly have been detected by the tactile sense of the police

officer. 241 Va. at 152-54, 400 S.E.2d at 195-96. In Hayes,

the police officer testified the object he felt during the frisk

was "'a lump' . . . [']something in his pocket.'" 29 Va. App.

at 660, 514 S.E.2d at 363. Only after manipulating the "lump"

did the officer suspect it was cocaine. In both Harris and

Hayes, the identity of the object seized during the frisk was

not "immediately apparent" and required, in effect, an

additional search for the officer to suspect contraband. The

uncontroverted record in this case reflects it was immediately

apparent to the officer, based on the totality of the

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circumstances including his training and experience, that the

object he touched was likely contraband.

Therefore, viewed in the light most favorable to the

Commonwealth, the evidence supported the trial court's denial of

the appellant's motion to suppress on this issue. See Welshman,

28 Va. App. at 36, 502 S.E.2d at 129. If an officer discovers

"contraband other than weapons [during a search for weapons], he

clearly cannot be required to ignore the contraband, and the

Fourth Amendment does not require its suppression in such

circumstances." Long, 463 U.S. at 1050; see also Guy, 492

N.W.2d 311. Under the plain feel doctrine, the officer was not

limited to seizing weapons. Officer Harvey seized the marijuana

lawfully.

For the foregoing reasons, the decision of the trial court

to deny the motion to suppress is upheld and the appellant's

convictions affirmed. 7

Affirmed.

7
Murphy also challenged the officers' actions in forcing
him to spit out the contraband he hid in his mouth. At oral
argument, however, he conceded that if the frisk and the seizure
of the marijuana were lawful, the seizure of the cocaine and
heroin was lawful as a search and seizure incident to arrest.
We agree and do not further address this question as the full
search was performed after Murphy was arrested for possession of
marijuana and it is well established that the police may conduct
a full search incident to a lawful custodial arrest. See United
States v. Robinson, 414 U.S. 218 (1973).

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