Debroux v. Com.

Tuesday 5th

December, 2000.

Anthony Dion Debroux, Appellant,

against Record No. 2737-98-1
Circuit Court No. 98-539

Commonwealth of Virginia, Appellee.

Upon a Rehearing En Banc

Before Chief Judge Fitzpatrick, Judges Benton, Coleman, Willis,
Elder, Annunziata, Bumgardner, Frank, Humphreys and Clements

Jay E. Dugger (McDermott & Roe, on brief),
for appellant.

Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.

By published opinion dated May 2, 2000, a divided

panel of this Court affirmed the judgments of the trial court.

We stayed the mandate of that decision and granted rehearing en

banc.

Upon rehearing en banc, it is ordered that the stay of

the May 2, 2000 mandate is lifted, and the judgments of the

trial court are affirmed for the reasons set forth in the

majority panel opinion.

Judge Elder, joined by Judge Benton, dissents for the

reasons set forth in the panel dissent.
 It is ordered that the trial court allow counsel for

the appellant an additional fee of $200 for services rendered

the appellant on the rehearing portion of this appeal, in

addition to counsel's costs and necessary direct out-of-pocket

expenses. This amount shall be added to the costs due the

Commonwealth in the May 2, 2000 mandate.

This order shall be published and certified to the

trial court.

A Copy,

Teste:

Cynthia L. McCoy, Clerk

By:

Deputy Clerk

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 Tuesday 27th

June, 2000.

Anthony Dion Debroux, Appellant,

against Record No. 2737-98-1
Circuit Court No. 98-539

Commonwealth of Virginia, Appellee.

Upon a Petition for Rehearing En Banc

Before Chief Judge Fitzpatrick, Judges Benton, Coleman, Willis,
Elder, Bray, Annunziata, Bumgardner, Frank and Humphreys

On May 12, 2000 came the appellant, by court-appointed

counsel, and filed a petition praying that the Court set aside

the judgment rendered herein on May 2, 2000, and grant a

rehearing en banc thereof.

On consideration whereof, the petition for rehearing

en banc is granted, the mandate entered herein on May 2, 2000 is

stayed pending the decision of the Court en banc, and the appeal

is reinstated on the docket of this Court.

The parties shall file briefs in compliance with Rule

5A:35. The appellant shall attach as an addendum to the opening

brief upon rehearing en banc a copy of the opinion previously

rendered by the Court in this matter. It is further ordered that

-3-
the appellant shall file with the clerk of this Court twelve

additional copies of the appendix previously filed in this case.

A Copy,

Teste:

Cynthia L. McCoy, Clerk

By:

Deputy Clerk

-4-
 COURT OF APPEALS OF VIRGINIA

Present: Chief Judge Fitzpatrick, Judges Elder and Lemons ∗
Argued at Chesapeake, Virginia

ANTHONY DION DEBROUX
OPINION BY
v. Record No. 2737-98-1 JUDGE DONALD W. LEMONS
MAY 2, 2000
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON
Christopher W. Hutton, Judge

Jay E. Dugger (McDermott & Roe, on brief),
for appellant.

Leah A. Darron, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.

Anthony Dion Debroux appeals his convictions for possession

of marijuana and possession of cocaine. On appeal, he contends

the trial court erroneously concluded that the search of his

person resulting in the discovery of the drugs did not violate

the Fourth Amendment. Finding no reversible error, we affirm.

I. BACKGROUND

On the evening of September 28, 1997, Sergeants Timothy

Walker and Robert McMurtrie were employed by American

International Security and were working as security guards at a

McDonald's Restaurant. That evening, a woman banged on the door

∗
Justice Lemons prepared and the Court adopted the opinion in
this case prior to his investiture as a Justice of the Supreme
Court of Virginia.

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and asked to use the restroom. At the time, the interior of the

restaurant was closed and the doors were locked, but the

"drive-thru" remained open. The woman was refused entry and

left but returned a few minutes later with the same request.

After this process repeated itself three or four times, Walker

and McMurtrie and a third security guard went outside and asked

the woman for identification. The woman said it was in her car.

As the guards escorted her to her vehicle, Debroux and another

man exited the vehicle and approached the officers. The woman

got into her car and remained there.

Debroux and his companion were "loud and disorderly,"

"yelling and screaming" profanities, and asked why the guards

stopped the woman. Debroux had red and glassy eyes, slurred

speech and an odor of alcohol about his person. He was "a

little unsteady on his feet" and "didn’t know where he was, [or]

what was going on." The guards determined that he was slightly

intoxicated but concluded they lacked the evidence necessary to

secure a warrant. After Debroux became even more disorderly,

McMurtrie patted him down for safety. McMurtrie felt a bulge in

Debroux's right pants pocket and removed the item, which

included two small bags containing .82 grams of cocaine, two

bags containing 3.29 grams of marijuana and a folded paper towel

containing what appeared to be seeds.

At trial, Debroux moved to suppress the drugs. Debroux

contended that the security guards admitted they were registered

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with the state and were, therefore, governmental actors. He

also argued that the officers admitted they lacked probable

cause and, even if McMurtrie was justified in patting down

Debroux for weapons, he could not identify the bulge as a weapon

and should not have removed it from Debroux's pocket.

The Commonwealth's attorney did not argue the state action

issue but, rather, claimed that probable cause existed for an

arrest for disorderly conduct or obstruction of justice and

public intoxication and that the guards were entitled to conduct

a full search incident to arrest.

A review of the record indicates that Walker was registered

with the Commonwealth pursuant to Code § 9-183.3. There is no

evidence that McMurtrie, who conducted the search, was so

registered.

The trial court denied the motion to suppress and stated:

Based upon [Debroux's] actions in terms of
being disorderly, I think the officers had
the appropriate right and responsibility to
conduct a pat down. While there was some
question as to the definition of the item
found, I do not think that the officers'
action in searching was unreasonable. I
think it was justified by the case law.

Debroux entered a plea of guilty but reserved his right to

appeal the denial of the suppression motion.

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 II. STATE ACTION

The Fourth Amendment is violated where an unreasonable

search is conducted by state actors. See Mapp v. Ohio, 367 U.S.

643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). "Evidence

obtained in violation of the Fourth Amendment is inadmissible in

a criminal prosecution for a charged criminal violation

pertaining to the seized evidence." Anderson v. Commonwealth,

20 Va. App. 361, 363, 457 S.E.2d 396, 397 (1995), aff’d 251 Va.

437, 470 S.E.2d 862 (1996). In Duarte v. Commonwealth, 12 Va.

App. 1023, 1025, 407 S.E.2d 41, 42 (1991), we stated,

"[T]he rule which excludes the evidence
obtained by unlawful search because in
violation of the Fourth Amendment does not
apply where the unlawful search was made by
a private individual acting on his own
initiative." Harmon v. Commonwealth, 209
Va. 574, 577, 166 S.E.2d 232, 234 (1969).
Thus, fourth amendment protections against
unreasonable searches and seizures are
"wholly inapplicable 'to a search or
seizure, even an unreasonable one, effected
by a private individual not acting as an
agent of the government or with the
participation or knowledge of any
governmental official.'" United States v.
Jacobsen, 466 U.S. 109, 113[-14, 104 S. Ct.
1652, 1656, 80 L. Ed. 2d 85] (1984) (quoting
Walter v. United States, 447 U.S. 649, 662[,
100 S. Ct. 2395, 2404, 65 L. Ed. 2d 410]
(1980); See Skinner v. Railway Labor Exec.
Ass'n, 489 U.S. 602[, 109 S. Ct. 1402, 103
L. Ed. 2d 639] (1989).

Whether government action is implicated "necessarily turns on

the degree of the Government's participation in the private

party's activities, a question that can only be resolved 'in

light of all the circumstances.'" Id. at 1026, 407 S.E.2d at 42

-8-
(quoting Skinner, 489 U.S. at 613-14, 109 S. Ct. at 1411).

"[T]o exclude evidence based on a fourth amendment violation, a

defendant must demonstrate the contested search or seizure was

conducted by an officer of the government or someone acting at

the government's direction rather than a private individual

acting on his own initiative." Duarte, 12 Va. App. at 1025, 407

S.E.2d at 42; See 5 W. LaFave, Search and Seizure § 11.2(b), at

37 (3d ed. 1996). The general rule is that private security

guards registered with the state pursuant to Code § 9-183.3 are

not, on that basis alone, state actors. See, e.g., Coston v.

Commonwealth, 29 Va. App. 350, 353, 512 S.E.2d 158, 160 (1999).

On appeal from a trial court's denial of a motion to

suppress, we must review the evidence in the light most

favorable to the Commonwealth, granting to the Commonwealth all

reasonable inferences fairly deducible from it. Commonwealth v.

Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).

The findings of the trial court will not be disturbed unless

plainly wrong or without evidence to support them. See Mier v.

Commonwealth, 12 Va. App. 827, 828, 407 S.E.2d 342, 343 (1991).

When reviewing the trial court's denial of a defendant's motion

to suppress evidence, "[t]he burden is upon [the defendant] to

show that th[e] ruling, when the evidence is considered most

favorably to the Commonwealth, constituted reversible error."

McGee v. Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261

(1997) (en banc) (quotation marks and citations omitted).

-9-
 At Debroux's suppression hearing, the initial burden was on

Debroux to establish that a search was conducted by state

actors. See, e.g., Mills v. Commonwealth, 14 Va. App. 459, 464,

418 S.E.2d 718, 720 (1992) ("'[I]t is the movant's burden to

establish by a preponderance of the evidence that the private

party acted as a government instrument or agent' . . . .");

Duarte, 12 Va. App. at 1025, 407 S.E.2d at 42. After the burden

of going forward with the evidence has been met by a

preponderance of the evidence, the burden shifts to the

Commonwealth to establish that the search and seizure were

constitutionally permissible. See, e.g., Mills, 14 Va. App. at

464, 418 S.E.2d at 720.

The Commonwealth could prevail on the motion to suppress by

defeating a claim of state action or by proving an exception to

the warrant requirement for a search. Here, the Commonwealth

argued that the search was permissible as an exception to the

warrant requirement. The trial court did not address the issue

of state action.

In Driscoll v. Commonwealth, 14 Va. App. 449, 417 S.E.2d

312 (1992), we recognized that "[a]n appellate court may affirm

the judgment of a trial court when it has reached the right

result for the wrong reason." Id. at 452, 417 S.E.2d at 313.

We also noted that the "right result, wrong reason" rule does

not apply where "the correct reason for affirming the trial

court was not raised in any manner at trial" and "where, because

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the trial court has rejected the right reason or confined its

decision to a specific ground, further factual resolution is

needed before the right reason may be assigned to support the

trial court's decision." Id. at 452, 417 S.E.2d at 313-14. On

appeal, we may affirm on grounds different from those on which

the trial court based its decision so long as the issue was

addressed at trial, evidence exists in the record to support

those alternate grounds, the trial judge's decision does not

reject those grounds, and no further factual resolution is

necessary to support the decision. See Driscoll, 14 Va. App. at

452, 417 S.E.2d at 314; see, e.g., Thims v. Commonwealth, 218

Va. 85, 235 S.E.2d 443 (1977) (despite the trial court's failure

to specifically find exigent circumstances, the Supreme Court of

Virginia held in the alternative that those circumstances

existed and that the challenged search was lawful).

In this case, as in Driscoll, there is no conflicting

evidence with respect to the state action issue. In fact, the

evidence in this record clearly supports a finding that there

was no state action. The record indicates that Debroux was

detained by privately employed security guards, one of whom was

registered with the Commonwealth pursuant to Code § 9-183.3.

The evidence does not show that the security guard who searched

Debroux was registered. Debroux offered no evidence that the

guards acted under government direction or that the government

participated in their activities. Walker and McMurtrie were

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privately employed to patrol the McDonald's Restaurant, and

their duty was to serve the restaurant and protect its

interests. They were not police officers. No evidence proved

that any law enforcement agencies knew about or exercised any

power or control over their actions on the night in question.

"While it was [McDonald's] policy to invoke the protection of

the law and the police to vindicate its rights through public

process, the duty of its agents did not necessarily require

police involvement or criminal prosecution. The cooperation

which those agents gave to the police was merely coincident to

the performance of their private duties." Mier, 12 Va. App. at

833, 407 S.E.2d at 346 (citations omitted).

From the initial contact with Debroux until the subsequent

arrest and disputed search and seizure, the evidence showed that

the security guards were acting pursuant only to their private

employment, conduct which presents no Fourth Amendment issues.

See, e.g., United States v. Francoeur, 547 F.2d 891, 893 (5th

Cir.), cert. denied, 431 U.S. 932 (1977); Coston, 29 Va. App. at

353, 512 S.E.2d at 160; Mier, 12 Va. App. at 833, 407 S.E.2d at

346; Duarte, 12 Va. App. at 1025, 407 S.E.2d at 42.

This case is distinguished from Johnson v. Commonwealth, 26

Va. App. 674, 496 S.E.2d 143 (1998), in one important respect.

In Johnson we observed,

[b]ased on the parties' representations and
its own review of the relevant legal
principles, the trial court held that the
[Virginia Marine Resources Commission] had

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 no administrative authority to conduct a
warrantless inspection or search of the
premises for untagged striped bass.

Id. at 681, 496 S.E.2d at 146. Because the Commonwealth

conceded the issue at trial and the trial judge decided the

issue accordingly, the Commonwealth was barred from raising the

issue on appeal. We said,

[i]n this case, the Commonwealth's attorney
conceded in the trial court that "there is
no regulatory scheme under Burger" that
would permit application of the
administrative search exception to the
warrant requirement. The trial court
agreed. Therefore, the Commonwealth is
barred from asserting the exception as a
basis for affirmance on appeal. See, e.g.,
Manns v. Commonwealth, 13 Va. App. 677,
679-80, 414 S.E.2d 613, 615 (1992) (holding
that a party, "having agreed upon the action
taken by the trial court, should not be
allowed to assume an inconsistent position")
(quoting Clark v. Commonwealth, 220 Va. 201,
214, 257 S.E.2d 784, 792 (1979)).

Johnson, 26 Va. App. at 683, 496 S.E.2d at 147.

Here, the Commonwealth did not concede the issue of state

action, nor did the trial judge decide the issue. The

Commonwealth's position and the trial court's decision were not

unlike the reasoning in many cases where the decision-maker

bypasses an issue because the case can be resolved without

addressing it. Often, appellate courts will preface such

reasoning by stating, "assuming without deciding." The record

does not reveal a concession by the Commonwealth, nor does it

reveal that the issue of state action was decided by the trial

court.

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 This case also is distinguished from Moore v. Commonwealth,

14 Va. App. 198, 415 S.E.2d 247 (1992), cited by the dissent.

In Moore, an appeal of a conviction for driving after having

been declared an habitual offender, the Commonwealth on appeal

asserted that Moore's double jeopardy argument was procedurally

defaulted because he did not offer proof at trial of his prior

convictions for reckless driving, failing to stop and attempting

to elude a police officer. We observed, "the Commonwealth

conceded that appellant had 'been tried' on the prior 'crimes.'"

Id. at 200, 415 S.E.2d at 248.

The existence of prior "crimes" is a necessary element of

double jeopardy analysis, and the record in Moore clearly

supported our conclusion that the Commonwealth conceded the

matter at trial. By contrast, the issue whether the officers

were state actors did not have to be decided because the trial

judge decided the case on alternative grounds.

Concluding that Debroux did not establish by preponderance

of the evidence that state action was involved, it is

unnecessary to address the merits of the Fourth Amendment claim.

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Accordingly, we hold that the trial court did not err in denying

the motion to suppress. The convictions are affirmed.

Affirmed.

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Elder, J., dissenting.

I believe the majority errs in concluding that the issue of

whether Walker and McMurtrie were state actors may serve as a

basis for affirmance on appeal. Therefore, I respectfully

dissent. Because I disagree on this issue, I would consider the

reasonableness of the search and would conclude that a remand

for additional findings of fact on this issue is required.

A.

GOVERNMENT ACTION

I agree with the majority's assertion that "in order to

exclude evidence based on a Fourth Amendment violation, a

defendant must demonstrate the contested search or seizure was

conducted by an officer of the government or someone acting at

the government's direction." Duarte v. Commonwealth, 12 Va.

App. 1023, 1025, 407 S.E.2d 41, 42 (1991). "'[I]t is the

movant's burden to establish by a preponderance of the evidence

that the private party acted as a government instrument or

agent' . . . ." Mills v. Commonwealth, 14 Va. App. 459, 464,

418 S.E.2d 718, 720 (1992) (quoting United States v. Feffer, 831

F.2d 734, 739 (7th Cir. 1987)). Whether government action is

implicated turns on the degree of the government's

"'participation in the private party's activities,'" Duarte, 12

Va. App. at 1026, 407 S.E.2d at 42 (quoting Skinner v. Railway

Labor Exec. Ass'n, 489 U.S. 602, 614-15, 109 S. Ct. 1402, 1411,

103 L. Ed. 2d 639 (1989)), and is a question of fact to be

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decided under the circumstances of each case, see Mills, 14 Va.

App. at 463-64, 418 S.E.2d at 720. 1

The majority concludes that "the Commonwealth did not

concede the issue of state action" and "the trial judge [did

not] decide the issue." I do not believe the majority's

conclusions are supported by the record. Whether Walker and

McMurtrie were state actors was a threshold issue which had to

be resolved before the trial court could address the existence

of probable cause or reasonable suspicion. Appellant expressly

argued to the trial court that Walker and McMurtrie were state

1
In deciding in Mills that whether a private person is a
government agent for purposes of the Fourth Amendment is a
question of fact, we relied on two cases decided by the Court of
Appeals for the Seventh Circuit. See Mills, 14 Va. App. at
463-64, 418 S.E.2d at 720 (citing United States v. Koenig, 856
F.2d 843, 849 (7th Cir. 1988); Feffer, 831 F.2d at 739). After
our decision in Mills, the Seventh Circuit noted that "the
ultimate question whether a private person is actually a
government agent" is "a question that requires the application
of a legal concept (agency) to facts" and "may, after Ornelas v.
United States, 517 U.S. 690, 116 S. Ct. 1657, 134 L. Ed. 2d 911
(1996), be subject to plenary review by the court of appeals."
United States v. Martin, 195 F.3d 961, 963 (7th Cir. 1999). The
Seventh Circuit also noted, however, that even under Ornelas,
"the determination of the underlying facts remains subject to
the clear-error rule." Id.; see McGee v. Commonwealth, 25 Va.
App. 193, 198 n.1, 487 S.E.2d 259, 261 n.1 (1997) (en banc)
(noting, under Virginia law, that an appellate court is "bound
by the trial court's findings of historical fact unless 'plainly
wrong'" rather than clearly erroneous).
Because the United States Supreme Court's decision in Ornelas
dealt expressly only with the standard for review of probable
cause and reasonable suspicion determinations, Ornelas is not
binding upon us in our review of Fourth Amendment agency issues.
See Ornelas, 517 U.S. at 699, 116 S. Ct. at 1659. Although the
Seventh Circuit's decision in Martin could be viewed as holding
that the agency issue is a mixed question of law and fact, our
decision in Mills remains binding on us unless altered by the
Virginia Supreme Court or this Court sitting en banc.
-17-
actors, and the Commonwealth's attorney did not contend

otherwise. In fact, he referred to them as "officers" and made

no mention of their status. He simply argued that they had

either probable cause to arrest or reasonable suspicion for a

weapons frisk, thus justifying discovery of the drugs. Whether

Walker and McMurtrie had probable cause or reasonable suspicion

would have been irrelevant if they were not state actors.

Therefore, I would hold the Commonwealth implicitly conceded

that Walker and McMurtrie were state actors. 2 Further, by

holding that "the officers had the appropriate right and

responsibility to conduct a pat down," the trial court also

implicitly found that the guards were state actors.

We reached a similar conclusion in Moore v. Commonwealth,

14 Va. App. 198, 200, 415 S.E.2d 247, 249 (1992). In Moore, the

accused was convicted for driving after having been declared an

habitual offender, over his claim that the conviction violated

the double jeopardy prohibition based on his prior conviction

for two misdemeanors arising out of the same act of driving.

See id. at 199, 415 S.E.2d at 248. He appealed, and the

Commonwealth argued that his claim was procedurally barred

2
This approach does not involve the application of Rule 5A:18,
which provides that "[n]o ruling of the trial court . . . will
be considered as a basis for reversal unless the objection was
stated with the grounds therefor at the time of the ruling,
except for good cause shown or to enable the Court of Appeals to
attain the ends of justice." Rule 5A:18 expressly applies to an
appellee only where the appellee asserts an error that seeks to
reverse a judgment. Here, the Commonwealth raised the state
actor issue as an alternative ground for affirmance of the

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because he never introduced evidence to prove his prior

misdemeanor convictions. See id. at 199-200, 415 S.E.2d at 248.

We held that although the Commonwealth did not make "an express

concession of [the accused's] misdemeanor convictions[,] . . .

the clear import of the Commonwealth's position" in arguing that

the convictions were not lesser-included offenses was that the

convictions did, in fact, exist. Id. at 200, 415 S.E.2d at 249.

We held that the Commonwealth, "'[h]aving conceded the matter

before the trial judge, . . . [was] bound by its concession and

[was] not entitled to raise this issue for the first time on

appeal.'" Id. (quoting Low v. Commonwealth, 11 Va. App. 48, 51,

396 S.E.2d 383, 384 (1990)); see also Clark v. Commonwealth, 220

Va. 201, 214, 257 S.E.2d 784, 792 (1979) ("[A party], having

agreed upon the action taken by the trial court, should not be

allowed to assume an inconsistent position.").

Here, as in Moore, the accused had the burden of proving

certain predicate facts, and the Commonwealth implicitly

conceded the existence of those facts. 3 Further, in reaching the

conviction.
3
Under Mills, whether the guards were state actors was a factual
determination. However, I would reach the same result if the
determination constituted a pure question of law or a mixed
question of law and fact. Where a trial court rules on a legal
issue and that ruling is unchallenged, it becomes "the law of
the case and is binding on the parties and this court." Miles
v. Commonwealth, 205 Va. 462, 468, 138 S.E.2d 22, 27 (1964); see
Correll v. Commonwealth, 232 Va. 454, 460 n.1, 352 S.E.2d 352,
355 n.1 (1987) (upholding as "the law of the case" trial court's
exclusion of defendant's statements where court ruled at
pretrial suppression hearing that statements were admissible but
said at trial, without objection, that it had ruled the
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issue of the reasonableness of the search, the trial court

implicitly ruled on the state actor issue. The majority

effectively ignores our decision in Moore, which remains binding

on a panel of this Court until overturned by the Virginia

Supreme Court or this Court sitting en banc. As Moore makes

clear, it matters not that the Commonwealth's concession and the

trial court's determination were implicit rather than explicit,

as in Johnson v. Commonwealth, 26 Va. App. 674, 496 S.E.2d 143

(1998).

The majority's application of the "right result for the

wrong reason" rule is misplaced. See Driscoll v. Commonwealth,

14 Va. App. 449, 417 S.E.2d 312 (1992). That principle permits

affirmance of a conviction on grounds different from those

relied on by the trial court if the alternate ground for

affirmance was raised in the trial court, evidence exists in the

record to support the alternate ground, the trial judge's

decision does not reject those grounds, and no further factual

resolution is necessary to support the decision. See id. at

452, 417 S.E.2d at 314. Here, as detailed more fully above, the

trial judge's ruling on the merits of the Fourth Amendment issue

constituted a rejection of the argument that Walker and

McMurtrie were not state actors.

Further, even if I were to agree with the majority that the

trial court did not rule implicitly on the state actor issue, I

statements were inadmissible).

-20-
nevertheless would conclude that further factual resolution

would have been necessary, thereby preventing us from affirming

on these grounds. Under Mills, 14 Va. App. at 463-64, 418

S.E.2d at 720, whether Walker and McMurtrie were state actors is

a question of fact. Contrary to the majority's assertion, our

ruling in Coston v. Commonwealth, 29 Va. App. 350, 512 S.E.2d

158 (1999), does not compel a different result under the facts

of this case. Although we noted in Coston that a private

security guard ordinarily is not a "public actor or public

employee for most purposes," we reached a contrary result in

that case. Id. at 352-53, 512 S.E.2d at 159-60. We held that a

private security guard who issued a summons for trespassing was

a state actor for purposes of punishing the forgery of the

trespasser in executing the summons. See id. We did not

purport in Coston to hold that all other acts by private

security guards do not constitute state action. Rather, such a

determination requires factual findings which should be made by

the trial court in the first instance.

For these reasons, I respectfully dissent from the decision

of the majority and would reach the trial court's ruling on the

reasonableness of the search.

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 B.

REASONABLENESS OF SEARCH

Police-citizen encounters which implicate the Fourth

Amendment fall into one of two categories. First, police may

engage in "brief investigatory stops, commonly referred to as

'Terry' stops, which must be based upon reasonable, articulable

suspicion that criminal activity is or may be afoot." McGee v.

Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997)

(en banc) (quoting United States v. Sokolow, 490 U.S. 1, 7, 109

S. Ct. 1581, 1585, 104 L. Ed. 2d 1 (1989)). Second, they may

effect "'highly intrusive, full-scale arrests' or searches[,]

which must be based upon probable cause to believe that a crime

has been committed by the suspect." Id. (quoting Sokolow, 490

U.S. at 7, 109 S. Ct. at 1585).

In the course of a Terry stop, the officer may conduct a

limited frisk of the suspect's outer clothing for weapons if the

officer "reasonably believes, based on specific and articulable

facts, that the suspect might be armed and dangerous. If,

during the pat-down search, the police officer feels an object

that he reasonably believes could be a dangerous weapon, the

officer may seize the object from the suspect's person."

Phillips v. Commonwealth, 17 Va. App. 27, 30, 434 S.E.2d 918,

920 (1993) (citations omitted).

If a police officer lawfully pats down a
suspect's outer clothing and feels an object
[other than a weapon] whose contour or mass
makes its identity immediately apparent,

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 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.

Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S. Ct. 2130,

2137, 124 L. Ed. 2d 334 (1993) (emphasis added). However, where

the character of the item detected is not immediately apparent

and the officer makes "no claim that he suspected [the] object

to be a weapon," he may not investigate further. Id. at 377-78,

113 S. Ct. at 2138-39. Further "exploration . . . [is]

unrelated to '[t]he sole justification of the search [under

Terry:] . . . the protection of the police officer and others

nearby.'" Id. at 378, 113 S. Ct. at 2138-39 (quoting Terry v.

Ohio, 392 U.S. 1, 29, 88 S. Ct. 1868, 1884, 20 L. Ed. 2d 889

(1968)).

Here, the evidence, viewed in the light most favorable to

the Commonwealth, the party prevailing below, supports the trial

court's finding that the officers had an objectively reasonable

suspicion of criminal activity sufficient to detain appellant

briefly for further investigation. The evidence establishes

that appellant and his companion were "loud and disorderly,"

"yelling and screaming" profanities, and that appellant

exhibited signs of intoxication--he "didn't know where he was,

what was going on," his eyes were red and glassy, his speech was

slurred, he had alcohol on his breath, and he was unsteady on

-23-
his feet. Assuming without deciding that these circumstances

gave the officers reason to believe appellant might be armed and

dangerous, nevertheless, Sergeant McMurtrie's frisk of appellant

exceeded the limits set out in Dickerson. McMurtrie testified

that he felt "a little bulge," which "wasn't solid or anything,"

and that he "wasn't too sure what it was." McMurtrie did not

testify that he believed the item to be a weapon, nor did he

testify that the character of the item was immediately apparent

to him after patting it. As a result, he was not permitted to

investigate further. Therefore, the trial court erred in

concluding that McMurtrie's discovery of the contraband was

within the scope of a reasonable search for weapons.

The Commonwealth urges us, in the alternative, to apply the

principle that permits affirmance of the trial court's ruling if

it reached the "right [result] for the wrong reason." Driscoll,

14 Va. App. at 452, 417 S.E.2d at 313. It contends the officers

had probable cause to arrest appellant for disorderly conduct

pursuant to Code § 18.2-415 and were entitled to search him

incident to that arrest.

Settled legal principles provide that an officer who makes

a custodial arrest based on probable cause properly may search

the arrestee pursuant to that custodial arrest. See United

States v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 477, 38

L. Ed. 2d 427 (1973). "Probable cause to arrest must exist

exclusive of the incident search. [However,] [s]o long as

-24-
probable cause to arrest exists at the time of the search, . . .

it is unimportant that the search preceded the formal arrest if

the arrest 'followed quickly on the heels of the challenged

search.'" Carter v. Commonwealth, 9 Va. App. 310, 312, 387

S.E.2d 505, 506-07 (1990) (quoting Rawlings v. Kentucky, 448

U.S. 98, 111, 100 S. Ct. 2556, 2564, 65 L. Ed. 2d 633 (1980))

(other citation omitted).

"[T]he test of constitutional validity [of a warrantless

arrest and incidental search] is whether . . . the arresting

officer had knowledge of sufficient facts and circumstances to

warrant a reasonable man in believing that an offense has been

committed." Bryson v. Commonwealth, 211 Va. 85, 86-87, 175

S.E.2d 248, 250 (1970). To establish probable cause, the

Commonwealth must show "'a probability or substantial chance of

criminal activity, not an actual showing'" that a crime was

committed. Ford v. City of Newport News, 23 Va. App. 137,

143-44, 474 S.E.2d 848, 851 (1996) (quoting Illinois v. Gates,

462 U.S. 213, 243 n.13, 103 S. Ct. 2317, 2335 n.13, 76 L. Ed. 2d

527 (1983)). Ordinarily, the Fourth Amendment requires only

that an objectively reasonable basis exist for a search. See,

e.g., Whren v. United States, 517 U.S. 806, 812-13, 116 S. Ct.

1769, 1774, 135 L. Ed. 2d 89 (1996). "'[T]hat the officer does

not have the state of mind which is hypothecated by the reasons

which provide the legal justification for the officer's action

does not invalidate the action taken as long as [all] the

-25-
circumstances, viewed objectively, justify that action.'" Id.

at 813, 116 S. Ct. at 1774 (quoting Scott v. United States, 436

U.S. 128, 138, 98 S. Ct. 1717, 1723, 56 L. Ed. 2d 168 (1978)).

Here, viewing the evidence in the light most favorable to

the Commonwealth, the officers had probable cause to arrest

appellant for public intoxication pursuant to Code § 18.2-388 or

disorderly conduct pursuant to Code § 18.2-415, thereby

justifying a full search of his person incident to arrest. 4 As

set out above, the evidence, viewed in the light most favorable

to the Commonwealth, establishes that appellant and his

companion were "loud and disorderly," "yelling and screaming"

profanities, and that appellant exhibited signs of

intoxication--he "didn't know where he was, what was going on,"

his eyes were red and glassy, his speech was slurred, he had

alcohol on his breath, and he was unsteady on his feet.

Code § 19.2-74 provides that an arresting officer who has

custody of a person for certain misdemeanor offenses, including

disorderly conduct, ordinarily shall issue the person a summons

and, upon his written promise to appear in compliance with the

summons, shall release that person from custody. However, that

code section, in conjunction with Code § 19.2-82, permits an

officer to effect a custodial arrest and take the arrestee

4
Appellant has not raised the issue of whether or to what extent
the authority of a registered security guard is subject to
limitations not imposed on traditional law enforcement officers.
Therefore, I analyze the guards' actions in detaining and
searching appellant as if they had the full power of arrest

-26-
before a magistrate under certain circumstances, such as when

the detainee fails or refuses to discontinue the unlawful act,

see Code § 19.2-74(A)(1), (2); Lovelace v. Commonwealth, 258 Va.

588, 596, 522 S.E.2d 856, 860 (1999), or when the arresting

officer reasonably believes the detainee is likely to harm

himself or others, see Code § 19.2-74(A)(1). That code section

specifically excludes from its coverage, inter alia, "the

offense of public drunkenness as defined in § 18.2-388." See

Code § 19.2-74(A)(2).

1.

DISORDERLY CONDUCT

The Commonwealth contends that the officers had probable

cause to arrest appellant for disorderly conduct and were

entitled to search him pursuant to that arrest. Under the facts

in this case, viewed in the light most favorable to the

Commonwealth, appellant committed the offense of disorderly

conduct and, according to Sergeant McMurtrie, appellant failed

to discontinue his disorderly conduct when the officers detained

him pursuant to their investigation. Therefore, the evidence

provided an objectively reasonable basis for a custodial arrest.

Although the officers would have been entitled to conduct a full

search incident to a lawful custodial arrest, the evidence does

not support a finding that they made such an arrest. Further,

they were not required to do so. Although Code § 19.2-74

given by the code to traditional law enforcement officers.
-27-
permitted an arrest based on appellant's failure or refusal to

discontinue his disorderly conduct, this provision is

discretionary and does not require the officer to effect a full

custodial arrest. See Code § 19.2-74(A)(1) ("[I]f any such

person shall fail or refuse to discontinue the unlawful act, the

officer may proceed according to the provisions of § 19.2-82,"

which permits an officer to effect a warrantless custodial

arrest. (emphasis added)). Where an officer merely issues a

summons or citation, he may not conduct a search incident to

issuance of the citation, even if the law permits a full

custodial arrest for the cited offense, in the absence of

evidence of a need to disarm the person or preserve evidence of

the violation for which the citation was issued. See Lovelace,

258 Va. at 594, 522 S.E.2d at 859 (citing Knowles v. Iowa, 525

U.S. 113, 115-18, 119 S. Ct. 484, 486-88, 142 L. Ed. 2d 492

(1998)); see also Rhodes v. Commonwealth, 29 Va. App. 641, 645,

513 S.E.2d 904, 906 (1999) (en banc).

Although Fourth Amendment analysis ordinarily involves an

evaluation of the objective reasonableness of a search or

seizure, see, e.g., Whren, 517 U.S. at 812-13, 116 S. Ct. at

1774, the United States Supreme Court's decision in Knowles v.

Iowa instructs that subjective intentions control the analysis

of whether a full search was reasonable under the facts of this

case, 525 U.S. at 117-18, 119 S. Ct. at 487-88; see also

Lovelace, 258 Va. at 595-96, 522 S.E.2d at 859-60. Where an

-28-
officer issues a summons in lieu of effecting a custodial arrest

and then conducts a full search based only on the "search

incident to arrest" rationale, as the officer in Knowles did,

the officer's subjective intent is clear from his completed

actions. See Knowles, 525 U.S. at 114, 119 S. Ct. at 486

(involving search of defendant's car as incident to arrest under

statute permitting such a search upon issuance of a citation).

Under those circumstances, without more, the Fourth Amendment

does not permit a full search. See id. at 117-18, 119 S. Ct. at

487-88. Where the officer conducts a full search prior to

either releasing the accused on a summons or effecting a full

custodial arrest, his intent may not be clear. Under these

circumstances, the mere presence of probable cause to effect a

full custodial arrest is insufficient to permit the search. See

Lovelace, 258 Va. at 594-96, 522 S.E.2d at 858-60 (involving

search of defendant's person during detention for open-container

offense). In Lovelace, in responding to an argument that

probable cause to arrest is, in fact, sufficient to permit a

full search, the Virginia Supreme Court held as follows:

The fact that the officers could have issued
only a summons for the [particular] offense
. . . negates the Commonwealth's argument
that the existence of probable cause to
charge [the accused] with [that particular
offense] allowed [the officer] 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.

-29-
Id. at 596, 522 S.E.2d at 860 (emphasis added). 5

Based on these principles, a full search of appellant was

not reasonable unless (1) the officers effected or intended to

effect a full custodial arrest for disorderly conduct prior to

undertaking the search or (2) the Commonwealth offered evidence

of a "need to disarm [appellant]," beyond the need satisfied by

a pat-down search, or a need to "preserve any evidence for the

[disorderly conduct] violation." Rhodes, 29 Va. App. at 645,

513 S.E.2d at 906; see Lovelace, 258 Va. at 593-94, 522 S.E.2d

at 858.

Here, the trial court did not expressly consider the

probable cause issue and made no finding that either officer

intended to make a full custodial arrest for disorderly conduct

5
In Lovelace, the Court acknowledged that the officer could have
effected a custodial arrest if Lovelace had failed or refused to
discontinue the unlawful act, but it said there was no evidence
in the record that Lovelace acted in such a manner. See 258 Va.
at 596, 522 S.E.2d at 860. Appellant's case is distinguishable
because the evidence would support a finding that appellant
refused to discontinue the unlawful act. However, this is a
distinction without a difference because, as discussed in the
text, infra, the trial court made no finding on this issue and,
even if it had, the officers still were not compelled to effect
a custodial arrest. Code § 19.2-74(A)(1) states merely that if
the "person shall fail or refuse to discontinue the unlawful
act, the officer may proceed according to the provisions of Code
§ 19.2-82." (Emphasis added). Because the officers could still
have decided only to issue a summons and did not testify that
they intended to effect a full custodial arrest prior to
conducting the full search, the rationale of Knowles and
Lovelace is applicable.
-30-
or any other offense. See Driscoll, 14 Va. App. at 452, 417

S.E.2d at 314 (noting that appellate court may not affirm

conviction under "right [result] for the wrong reason" rationale

in "those cases where, because the trial court has . . .

confined its decision to a specific ground, further factual

resolution is needed"). Further, even viewed in the light most

favorable to the Commonwealth, the evidence does not support

such a finding. McMurtrie said he initially detained appellant

for being disorderly and then placed him in custody when he

became even more disorderly. However, McMurtrie never testified

that he effected or intended to effect a custodial arrest. Code

§ 19.2-74, which allows release of certain misdemeanants on a

summons, uses the terms "detention" and "custody"

interchangeably and does not permit the inference that placing a

misdemeanant "in custody" is synonymous with effecting a

custodial arrest. See also Lovelace, 258 Va. at 596, 522 S.E.2d

at 860. Therefore, the evidence does not permit a finding that

McMurtrie intended to effect a custodial arrest.

Finally, the Commonwealth offered no evidence of a "need to

disarm [appellant]," beyond the need satisfied by the pat-down

search, and no evidence of a need to "preserve any evidence for

the [disorderly conduct] violation." Rhodes, 29 Va. App. at

645, 513 S.E.2d at 906; see also Lovelace, 258 Va. at 596-97,

522 S.E.2d at 860 (noting that where officer conducting pat-down

"felt nothing similar to a weapon" and "did not testify that he

-31-
felt something that was evidence related to [the charged offense

of] drinking an alcoholic beverage in public," officer "did not

'reasonably believe' that the bag was either a weapon or

evidence related to [defendant's] alleged alcohol offense").

Walker and McMurtrie both testified that McMurtrie conducted a

pat-down "for . . . safety."

For these reasons, the evidence of appellant's disorderly

conduct did not render the officers' search of appellant

reasonable under the Fourth Amendment.

2.

PUBLIC DRUNKENNESS

The search of appellant may nevertheless have been

reasonable if supported by probable cause to arrest for public

drunkenness under Code § 18.2-388. However, as set out above,

the trial court did not consider the probable cause issue and

made no factual finding regarding whether the officers had

probable cause to arrest for public intoxication. Therefore, we

cannot on this record determine whether the trial court may have

reached the right result for the wrong reason. See Driscoll, 14

Va. App. at 452, 417 S.E.2d at 314 (noting that appellate court

may not affirm conviction under "right [result] for the wrong

reason" rationale in "those cases where, because the trial court

has . . . confined its decision to a specific ground, further

factual resolution is needed"). Accordingly, I would reverse

-32-
appellant's convictions and remand to the trial court for

further proceedings consistent with this opinion.

-33-