COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Frank and Senior Judge Baker
Argued at Norfolk, Virginia
LISA L. GOLDEN
OPINION BY
v. Record No. 2026-98-1 JUDGE RICHARD S. BRAY
SEPTEMBER 28, 1999
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF SUFFOLK
E. Everett Bagnell, Judge
Timothy E. Miller, Public Defender (Office of
the Public Defender, on brief), for
appellant.
Richard B. Smith, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellee.
Lisa L. Golden (defendant) was convicted in a bench trial for
possession of cocaine in violation of Code § 18.2-250. On appeal,
she contends that the trial court erroneously denied her motion to
suppress evidence obtained by police incident to an unlawful
arrest. We disagree and affirm the conviction.
I.
At approximately 11:30 p.m. on the evening of January 30,
1998, Officer J.M. Brown, together with another officer, was
patrolling the City of Suffolk in an unmarked police vehicle,
participating in an investigation of prostitution within that
community. As the two proceeded along a public street, defendant,
"walking in the opposite direction," "made eye contact" with the
officers. Brown stopped the car, defendant approached "of her own
free will," and the officers "asked . . . if she needed a ride."
Defendant answered, "yes," entered the vehicle and seated herself
on the rear passenger side. The officers inquired "[i]f there was
a party going on somewhere," and defendant immediately offered to
"give [them] head for a dime." Based upon "experience as a police
officer," Officer Brown recognized the response as a proposition
to provide "oral sex" in exchange for $10 and signaled uniformed
police, located nearby, to "move in and arrest" defendant for
prostitution.
A search incident to the arrest resulted in discovery of two
"crack stems" on defendant's person, each containing cocaine
residue, evidence that supported the subject offense. Prior to
trial, defendant moved the court to suppress the items, arguing
that the police lacked probable cause to arrest her for
prostitution and, therefore, unconstitutionally seized the
contraband. The trial court denied the motion and convicted
defendant of the instant offense, resulting in this appeal.
Upon review of a trial court's denial of a motion to
suppress, "[t]he burden is upon [defendant] to show that this
ruling, when the evidence is considered most favorably to the
Commonwealth, constituted reversible error." Fore v.
Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731, cert.
denied, 449 U.S. 1017 (1980). "Questions of . . . probable cause
to make a warrantless search are subject to de novo review on
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appeal. '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.'" Archer v. Commonwealth, 26
Va. App. 1, 8, 492 S.E.2d 826, 830 (1997) (citations omitted).
II.
"'Whether a warrantless arrest was constitutionally valid
depends upon whether, at the moment the arrest was made, the
officers had probable cause to make it.'" Jefferson v.
Commonwealth, 27 Va. App. 1, 12, 497 S.E.2d 474, 479 (1998)
(citations omitted). If so, such "arrest of a suspect . . . is a
reasonable intrusion under the Fourth Amendment" and, "that
intrusion being lawful, a search incident to the arrest requires
no additional justification." United States v. Robinson, 414 U.S.
218, 235 (1973). 1 Conversely, however, "a warrantless arrest that
is not based upon probable cause is unconstitutional and evidence
seized as a result of an unconstitutional arrest is inadmissible,
without regard to the officer's good faith and reasonable belief
that he was not factually or legally mistaken." Ford v. City of
Newport News, 23 Va. App. 137, 145, 474 S.E.2d 848, 852 (1996).
"'[P]robable cause is measured against an objective
standard.'" Taylor v. Commonwealth, 10 Va. App. 260, 266, 391
1
The well-established authority to search an accused
incident to a lawful custodial arrest is generally "based upon
the need to disarm and to discover evidence." Robinson, 414
U.S. at 235; see also Chimel v. California, 395 U.S. 752, 763
(1969).
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S.E.2d 592, 595-96 (1990) (citations omitted). It "'exists where
"the facts and circumstances within the arresting officers'
knowledge and of which they had reasonably trustworthy information
are sufficient in themselves to warrant a man of reasonable
caution in the belief that" an offense has been or is being
committed.'" Jefferson, 27 Va. App. at 12, 497 S.E.2d at 479
(citation omitted). "'In assessing an officer's probable cause
for making a warrantless arrest, no less strict standards may be
applied than are applicable to a magistrate's determination that
an arrest warrant should issue.'" Ford, 23 Va. App. at 144, 474
S.E.2d at 851 (citation omitted).
It is uncontroverted on the instant record that defendant was
initially arrested, without a warrant, for prostitution, a
violation of Code § 18.2-346, which provides, in pertinent part,
that "any person who, for money or its equivalent, . . . offers to
commit adultery, fornication or any act in violation of § 18.2-361
and thereafter does any substantial act in furtherance thereof,
shall be guilty of being a prostitute, or prostitution . . . ."
Code § 18.2-346(A) (emphasis added). Manifestly, evidence of "a
[s]ubstantial act performed in furtherance of the offer" is
essential to the offense. Adams v. Commonwealth, 215 Va. 257,
258, 208 S.E.2d 742, 744 (1974) (emphasis added).
The record establishes that defendant offered to "carnally
know" the officers "with the mouth," a violation of Code
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§ 18.2-361(A), 2 in exchange "for money," all indispensable
elements to prostitution contemplated by Code § 18.2-346(A). See
Code § 18.2-361(A). However, the evidence does not disclose
"thereafter any substantial act in furtherance thereof." Code
§ 18.2-346(A). Thus, at the time of the warrantless arrest,
police lacked reasonable belief that the crime of prostitution or
attempted prostitution had been or was being committed and,
therefore, arrested defendant without the requisite probable
cause. 3
The Commonwealth, nevertheless, insists that the arrest and
related search of defendant were valid because police also
possessed probable cause to arrest her for solicitation to commit
oral sodomy, in violation of Code § 18.2-29. 4 The Commonwealth
reasons, "an arrest supported by probable cause [related to one
offense] is not made unlawful by an officer's subjective reliance
on, or verbal announcement of, an offense different from the one
for which probable cause exists." State v. Huff, 826 P.2d 698,
701 (Wash. App. 1992).
2
Code § 18.2-361(A) provides that, "[i]f any person
carnally knows . . . any male or female person . . . by or with
the mouth, or voluntarily submits to such carnal knowledge, he
or she shall be guilty of a Class 6 felony."
3
The good faith of the arresting officers in effecting the
arrest is not in issue.
4
Code § 18.2-29 makes it unlawful for "any person to
command[], entreat[], or otherwise attempt[] to persuade another
person to commit a felony."
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Although Virginia has neither accepted nor rejected the
Commonwealth's theory, 5 the rationale finds support in a majority
of other jurisdictions that have confronted the issue, each
concluding that "[t]he absence of probable cause to believe that a
person committed a particular crime for which a person was
arrested does not create an invalid arrest if, at the time of the
arrest, the police had sufficient information to support an arrest
of the person on a different charge." City of Seattle v.
Cardigan, 776 P.2d 727, 731 (1989) (citation omitted); see e.g.,
United States v. Saunders, 476 F.2d 5 (5th Cir. 1973) (although
accused arrested without probable cause for harboring or
concealing fugitive, search valid because probable cause existed
to arrest for marijuana possession); United States v. Kalter, 5
F.3d 1166 (8th Cir. 1993) (police lacked probable cause to arrest
for concealed weapon, but search supported by probable cause to
arrest for transporting weapon); United States v. Brookins, 434
5
Taylor lends support to the Commonwealth's argument. 10
Va. App. 260, 391 S.E.2d 592. In Taylor, an officer had removed
a gun from the defendant's "bag" before realizing that it was
contraband. Id. at 263, 391 S.E.2d at 593. Nevertheless, the
trial court found that "the 'sawed-off shotgun [was] in plain
view, the butt of it sticking out of a bag[,] . . . easily
identified by anyone knowledgeable with guns.'" Id. at 266, 391
S.E.2d at 596. In affirming the conviction, we concluded that
"the trial court [is] free to substitute its finding based on
the objective facts before it that probable cause to seize the
gun existed prior to its removal from the bag . . . under the
plain view exception." Id. at 266-67, 391 S.E.2d at 596. See
also Shears v. Commonwealth, 23 Va. App. 394, 399, 477 S.E.2d
309, 311 (1996) (evidence resulting from mistaken arrest of
accused on warrant admissible).
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F.2d 41 (5th Cir. 1970) ("probable cause for arrest for carrying
on the business of a distiller would prevent [improper] arrest"
for another offense "from being held illegal"); Klinger v. United
States, 409 F.2d 299 (8th Cir.), cert. denied, 396 U.S. 859 (1969)
(search incidental to improper arrest for "vagrancy" valid because
probable cause existed for a robbery arrest); Huff, 826 P.2d 698
(no probable cause to arrest for "obstructing public servant," but
search valid when officer "had objectively sufficient probable
cause to believe" accused possessed controlled substance).
We find the rationale of these decisions persuasive.
Probable cause is "determined by objective facts," not the
"subjective opinion" of a police officer. Klinger, 409 F.2d at
304. Thus,
an arrest not supported by probable cause is
not made lawful by an officer's subjective
belief that an offense has been committed.
By the same token, [however,] an arrest
supported by probable cause is not made
unlawful by an officer's subjective reliance
on . . . an offense different from the one
for which probable cause exists.
Huff, 826 P.2d at 701. This "even-handed application" of the
constitutional protection against unlawful arrest protects
individual freedom with the shield of objective probable cause
while at once "allow[ing] room for some mistakes by the arresting
officer." Klinger, 409 F.2d at 304.
Here, defendant's offer to engage the officers in oral
sodomy, a felony, was sufficient to establish probable cause for
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solicitation in violation of Code § 18.2-29. See Branche v.
Commonwealth, 25 Va. App. 480, 490-91, 489 S.E.2d 692, 697 (1997).
Thus, viewed objectively, police possessed sufficient probable
cause to arrest defendant for solicitation without a warrant and
undertake an incidental search. The probable cause to support an
arrest of defendant for the alternate offense otherwise armed the
officers, acting in good faith, with the necessary justification
to conduct the disputed arrest and search. 6
Accordingly, the trial court correctly denied defendant's
motion to suppress, and we affirm the conviction.
Affirmed.
6
Defendant mistakenly relies upon Ford in support of her
challenge to the instant arrest and search. 23 Va. App. 137,
474 S.E.2d 848. In Ford, the police lacked probable cause to
arrest defendant for another offense.
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