COURT OF APPEALS OF VIRGINIA
Present: Judge Bray, Senior Judges Cole and Overton
Argued at Richmond, Virginia
MICHAEL FERNELL FARROW
OPINION BY
v. Record No. 0212-98-2 JUDGE RICHARD S. BRAY
FEBRUARY 22, 2000
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY
John F. Daffron, Jr., Judge
Lee W. Kilduff (Anthony G. Spencer;
Morchower, Luxton & Whaley, on briefs), for
appellant.
Marla Graff Decker, Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellee.
Michael Fernell Farrow (defendant) was convicted, in a bench
trial, for possession of cocaine. He complains on appeal that the
court erroneously denied his motion to suppress the drugs and
related evidence. We agree and reverse the conviction.
"In reviewing a trial court's denial of a motion to suppress,
'the burden is upon the defendant to show that the 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) (citation
omitted). "[W]e review de novo the trial court's application of
defined legal standards such as probable cause and reasonable
suspicion to the particular facts of the case." Hayes v.
Commonwealth, 29 Va. App. 647, 652, 514 S.E.2d 357, 359 (1999)
(citation omitted). "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 and we give due weight
to the inferences drawn from those facts by resident judges and
local law enforcement officers." McGee, 25 Va. App. at 198, 487
S.E.2d at 261 (quoting Ornelas v. United States, 517 U.S. 690, 699
(1996)).
On March 29, 1997, Officer Timothy Morton of the Chesterfield
County Police Department, while patrolling Cloverleaf Mall in
Chesterfield, received "a call from Mall security to assist . . .
with a subject [defendant] that they wanted to ban from the Mall."
Morton approached and asked defendant to "step back to the
security office." Defendant accompanied Morton a short distance
but suddenly "veer[ed] off" from the office. When Morton advised
defendant, "it would be in your best interest to get you to Mall
security and get you banned and get you out of here," he
responded, "They ain't going to ban me for that shit." Morton
then arrested defendant "for profanity in public," a Class 3
misdemeanor, handcuffed and "walked" him to the security office,
"where the summons . . . and the papers are kept." Once inside,
defendant was advised of his Miranda rights and "thoroughly
searched," resulting in discovery of the cocaine.
In support of his contention that the search was in violation
of the Fourth Amendment, requiring suppression of the related
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evidence, defendant asserts that a "brief detention" incidental to
the issuance of a summons for a Class 3 misdemeanor does not rise
to a custodial arrest or otherwise justify a search of the
accused. Defendant further contends that he was subjected to a
custodial arrest in violation of Code § 19.2-74(A)(2), a
circumstance that he maintains also requires suppression of the
evidence. 1
It is well established that, following "a lawful custodial
arrest[,] a full search of the person is not only an exception
to the warrant requirement of the Fourth Amendment, but is also
a 'reasonable' search under that Amendment." United States v.
Robinson, 414 U.S. 218, 235 (1973) (emphasis added). However,
the Supreme Court has refused to extend this "bright-line rule"
to a "search incident to citation" related to a "routine traffic
stop." Knowles v. Iowa, 525 U.S. 113, 118 (1998). The Court
reasoned that "the two historical rationales for the 'search
incident to arrest' exception[,] (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[,]" did not attend such
"relatively brief" police/citizen "encounter[s]." Id. at 116.
Subsequently, in Lovelace v. Commonwealth, 258 Va. 588, ___
S.E.2d ___ (1999), the Supreme Court of Virginia, guided by the
rationale of Knowles, concluded that Class 3 and 4 misdemeanors
1
We find that this issue is subsumed in our resolution of
the constitutional argument.
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were "similar in nature and duration to a routine traffic stop"
and did not "contemplate[] a custodial situation equivalent to
an actual custodial arrest." Lovelace, 258 Va. at 596, ___
S.E.2d at ___; see Code § 19.2-74(A)(2). Thus, "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." Id. at 596, ___ S.E.2d at ___. The
Court recognized, however, that such "an encounter between
[police] and an individual . . . may involve some degree of
danger to the officer or . . . need to preserve or discover
evidence sufficient to warrant an additional intrusion,"
"limited to what is necessary to answer the concerns raised by
. . . either historical rationale." Id. at 594, ___ S.E.2d at
___.
Here, Officer Morton was authorized by Code § 19.2-74(A)(2)
only to issue defendant a summons for a Class 3 misdemeanor.
Nevertheless, defendant was handcuffed and escorted to a
security room to afford Morton access to his "summons book" and
other "papers." The record establishes neither a need to
preserve evidence nor safety concerns 2 in support of the
custodial equivalent to arrest and the related search of
2
If, as the Commonwealth asserts on brief, circumstances
had accompanied the encounter which threatened Morton, the
"thorough search" of defendant clearly exceeded the "limited"
"additional intrusion . . .[] necessary to answer the concerns."
Lovelace, 258 Va. at 594, ___ S.E.2d at ___.
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defendant's person. See id. at 597, ___ S.E.2d at ___; see also
Smith v. Commonwealth, 30 Va. App. 737, 742, 519 S.E.2d 831, 833
(1999); Rhodes v. Commonwealth, 29 Va. App. 641, 645, 513 S.E.2d
904, 906 (1999).
Accordingly, the trial court erroneously denied the motion
to suppress, and we reverse and remand for such further
proceedings as the Commonwealth may deem appropriate.
Reversed and remanded.
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