Hunt v. Commonwealth

FELTON, J.,

dissenting.

I would affirm the trial court’s judgment in denying Hunt’s motion to suppress the evidence obtained in the search following his arrest for trespass, and affirm Hunt’s convictions for possession of cocaine with the intent to distribute and possession of a weapon while in the possession of cocaine.

“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). “We 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 *424inferences drawn from those facts by resident judges and local law enforcement officers.” McGee, 25 Va.App. at 198, 487 S.E.2d at 261 (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996)).

Lovelace v. Commonwealth, 37 Va.App. 120, 124, 554 S.E.2d 688, 689 (2001).

In Hunt’s view, Officer Ferrell simply should have taken his name and address and issued a summons to him, directing that he appear at a stated date and time. He argued to the trial court and on appeal that Officer Ferrell had already made the decision to place him under custodial arrest prior to the search, in violation of Code § 19.2-74 and the Fourth Amendment’s proscription against conducting a “search incident to citation” as articulated in West v. Commonwealth, 36 Va.App. 237, 242, 549 S.E.2d 605, 607 (2001), and Rhodes v. Commonwealth, 29 Va.App. 641, 645, 513 S.E.2d 904, 906 (1999).

At trial, when Officer Ferrell was asked his reasons for taking Hunt to the office, he testified:

Number one for safety reasons. Out in the apartment complex you have people hanging out. We didn’t want to arouse the crowd. We had paper work inside, [we could] sit down and talk and not worry about people coming to our location. [We] [d]idn’t want to take the chance of someone running away from us, or lose information, [and we wanted to] obtain information to process the parties.

When asked whether he planned to release Hunt on a summons at the apartment complex, Officer Ferrell testified:

I guess that was going to be based on talking with him and find [sic] out if he actually understood that if I was going to release him on a summons he was going to come to court or stay off the property. Based on the past with people as far as trespassing when I write a summons they come back the very next day or very next week. I guess my intention was to take him downtown.

Hunt suggests that Officer Ferrell’s testimony, “I guess my intention was to take him downtown,” is determinative that *425Hunt was already in a custodial arrest posture at the moment they arrived in the rental office, and at that point his detention was unlawful and in violation of Code § 19.2-74. He therefore asserts that the subsequent search was in violation of his statutory and Fourth Amendment rights and that the evidence seized during the search should be suppressed.

In my view, the evidence supports Officer Ferrell’s decision to place Hunt under custodial arrest given the totality of the circumstances surrounding his arrest for trespass in this particular incident. In enacting Code § 19.2-74, the General Assembly authorized an arresting officer to exercise his discretion, in specific instances, to place a person in full custodial arrest rather than releasing that person on a summons: i.e., where the officer has a reasonable belief that the person would fail to appear to answer the summons; where the officer reasonably believes that the person is likely to cause harm to himself or others; or where the officer has a reasonable basis to believe the person would fail or refuse to discontinue the unlawful act. Code § 19.2-74(A)(1).

The trial court specifically asked Officer Ferrell about his experience of releasing banned trespassers at the apartment complex. He responded that many trespassers he released on a summons returned to the property. “I have one guy that I wrote a ticket to twice within two weeks. Another officer got him the next day____”

The trial court heard testimony that the apartment complex was located in a high crime area, where violent crimes and illegal drug activity were commonplace. The uncontradicted testimony was that the owners of the apartment complex employed off-duty police officers to “clean up the drug activity and to make it a better environment for the people who lived in the complex.” Two months prior to Hunt’s arrest, a “girl got [sic] shot and killed.” Additionally, the trial court heard that there was a “drug corner across from the apartment complex.” The officer had recently seen Hunt in the vicinity of the apartment complex from which he had been previously banned. Prior to beginning his patrol of the property on the *426day in question, Officer Ferrell specifically searched for and located Hunt’s picture and name among those who had been banned from the property. When he arrested Hunt, Officer Ferrell assured that Hunt was indeed the same person whom he had recently seen in the vicinity and who had been banned from the property. As the trial court noted, “He’s [Officer Ferrell] got a picture of the man that’s [sic] been told to stay off the property and he’s back over there. I think it’s reasonable for him to assume that he’s not going to do what they told him to do.” In other words, the trial judge reasonably concluded that the officer was correct in deciding not to release Hunt on a summons because he could reasonably conclude that Hunt would not obey the summons and would not stay off the property.

Based on his training and experience, and especially his experience at this particular apartment complex, Officer Ferrell was reasonable in arresting Hunt, placing him in handcuffs, and removing him to the rental property office for safety reasons. Officer Ferrell was concerned that a crowd would gather while he was dealing with Hunt and his companions, creating a security concern if he continued to complete the arrest process there.

The record reflects that immediately on arrival at the rental office, and prior to removing the handcuffs from Hunt or to obtaining additional information from him as part of the arrest process, Officer Ferrell gave Hunt the Miranda warnings. He told Hunt that he intended to search him, and asked Hunt if there was anything he should know prior to performing the search. Hunt informed Officer Ferrell that he had a gun in his clothing.

At that time, the officer had authority, indeed the responsibility, to search Hunt to locate and remove the weapon and to conduct a full search incident to a custodial arrest for trespass. In summary, the officer knew that Hunt was armed with a gun, that Hunt had just trespassed on property from which he had been specifically banned, and that the property was in an area that had been the site of violent criminal activity, includ*427ing a recent fatal shooting. Hunt thus posed a danger of harm to both the officer and to others in the apartment complex. Officer Ferrell could not be reasonably expected to release the armed Hunt on a summons and to tell him to go on his way.

Hunt’s statement to Officer Ferrell was voluntary, non-coerced, and followed the Miranda warnings.11 It was obtained during a limited period when Hunt was lawfully detained to process him on the arrest for trespass. Because Hunt was lawfully detained, and voluntarily admitted that he had a weapon before Officer Ferrell had an opportunity to complete the process for the trespass arrest, the search did not violate the release on summons provisions of Code § 19.2-74 or the Fourth Amendment prohibition of “search incident to citation.”

In Lovelace v. Commonwealth, 258 Va. 588, 596, 522 S.E.2d 856, 860 (1999), the Supreme Court held that “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.” However, the Court recognized that “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, 522 S.E.2d at 859; Farrow v. Commonwealth, 81 Va.App. 517, 520-21, 525 S.E.2d 11, 13 (2000). In short, a police officer, in limited circumstances, may impose some further intrusions, consistent -with the Fourth Amendment, if either historical *428rationale for the “search incident to arrest” exception is present.12 Lovelace, 258 Va. at 594, 522 S.E.2d at 859.

In my judgment, the lawful detention of Hunt stemming from his arrest did not become an unlawful detention simply because the officer told him he intended to search him, irrespective of whether that anticipated search was invalid under the summons/custodial arrest dichotomy. It is the legality of Hunt’s detention at the moment he revealed that he had a gun on his person, not the legality of the officer’s subjective intent to conduct a future search, which matters.13

Officer Ferrell was reasonable in the exercise of his discretion within Code § 19.2-74 to place Hunt in a full custodial arrest based on the officer’s experience and training, in particular his experience at this location. Furthermore, he was reasonable in determining that Hunt would not do what he was told to do if released on a summons.

I would, therefore, affirm the trial court’s denial of the motion to suppress the evidence seized, and affirm Hunt’s *429convictions of possession of cocaine with the intent to distribute and possession of a firearm while in possession of cocaine.

. Hunt did not contest at trial or on brief that the post-Miranda warning statement was voluntarily given. He only contended that he should have been released on a summons immediately following his arrest for trespass and that the statement he made to Officer Ferrell was during his period of unlawful detention. Generally, statements made during a period of unlawful detention are inadmissible, even following Miranda warnings. Brown v. Illinois, 422 U.S. 590, 603, 95 S.Ct. 2254, 2261, 45 L.Ed.2d 416 (1975); Watson v. Commonwealth, 19 Va.App. 659, 665, 454 S.E.2d 358, 362 (1995).

. The historical rationales justifying a full, field-type search include the need to disarm the suspect in order to take him into custody, and the need to preserve evidence for later use at trial. See Knowles v. Iowa, 525 U.S. 113, 116, 119 S.Ct. 484, 487, 142 L.Ed.2d 492 (1998).

. See United States v. Scheetz, 293 F.3d 175 (4th Cir.2002). Police erected signs reading "K-9 check point ahead.” Such a checkpoint would appear to be unlawful under City of Indianapolis v. Edmond, 531 U.S. 32, 121 S.Ct. 447, 148 L.Ed.2d 333 (2000), but the defendant did not stop at the checkpoint. Instead, he made a U-turn creating reasonable suspicion for the police to stop the vehicle. Thus any subjective intent to illegally stop the defendant at the checkpoint became irrelevant when the defendant supplied a factual basis for the stop.

See also United States v. Letsinger, 93 F.3d 140 (4th Cir.1996). In a consensual encounter, officers informed the defendant that they were "going to detain his bag” and that "he could retrieve it later.” Without touching the bag, the officers continued to converse with the defendant who acknowledged that he had a small amount of marijuana in the bag. Following this admission, the officers searched the bag and found a large amount of crack cocaine. The court held that, under the circumstances of the case, no seizure took place until the officers physically touched the bag, which occurred only after the defendant’s incriminating statement gave them probable cause to seize and search the bag.