COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Huff, Judges Petty and Beales
UNPUBLISHED
Argued by teleconference
MICHAEL HARRIS, S/K/A
MICHAEL WAYNE HARRIS
MEMORANDUM OPINION* BY
v. Record No. 1149-16-2 JUDGE RANDOLPH A. BEALES
JULY 5, 2017
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF LOUISA COUNTY
Timothy K. Sanner, Judge
Reed C. Amos (Amos & Amos, PLLC, on briefs), for appellant.
Victoria Johnson, Assistant Attorney General (Mark R. Herring,
Attorney General, on brief), for appellee.
Appellant was indicted by a grand jury on November 9, 2015 on two charges of possession
of a Schedule II controlled substance in violation of Code § 18.2-250. On February 1, 2016,
appellant filed a pre-trial motion to suppress evidence obtained by law enforcement during a
warrantless search and seizure. After a hearing on the motion to suppress on February 18, 2016, the
trial court denied appellant’s motion. After a bench trial, the trial court found appellant guilty as
charged and sentenced appellant to four years in prison, with three years and eight months
suspended. On appeal, appellant argues the trial court erred in denying his motion to suppress.
I. BACKGROUND
We consider the evidence on appeal “in the light most favorable to the Commonwealth, as
we must since it was the prevailing party” in the trial court. Beasley v. Commonwealth, 60
Va. App. 381, 391, 728 S.E.2d 499, 504 (2012) (quoting Riner v. Commonwealth, 268 Va. 296,
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
330, 601 S.E.2d 555, 574 (2004)). So viewed, the evidence established that Sergeant Robert Hix of
the Louisa County Sheriff’s Office responded to a 911 call on June 1, 2014. The 911 call
informed the authorities of an altercation involving an individual armed with a knife outside of a
home on Labor Lane. When Hix arrived at that location at approximately 11:21 a.m., he
observed two males standing on opposite sides of a roadway. Timothy Harris, appellant’s
brother (“the brother”), was standing about twenty feet away from appellant. When Hix arrived,
he observed appellant holding a folding knife with a three to four-inch blade. The knife was in
appellant’s right hand, and the blade was unfolded. As Hix arrived in his marked police vehicle,
he observed appellant place the knife on the hood of the parked car. Appellant then walked to
the rear of the vehicle as Sergeant Hix parked his service vehicle.
Sergeant Hix got out of his vehicle and immediately handcuffed appellant. He explained
to appellant that he was detaining appellant for the purposes of officer safety based on the
reported altercation involving a knife. Hix testified that he performed a pat-down of appellant to
make sure there were no other weapons on him besides the folding knife that appellant had just
placed on the parked car. While patting down appellant’s right front pants pocket, Hix felt a
hard object approximately one inch in length. Hix then reached into that pocket and removed the
item. The item in question was a small glass vial that contained a substance later determined to
be PCP. After Hix had removed the vial, appellant stated, “[T]hat’s nothing but my PCP that I
use for pain management.” Hix testified that he removed the item from appellant’s front right
pocket because he wanted to make sure it was not a weapon. He testified that he had
encountered “knives as short as an inch” in his experience as a law enforcement officer. On
cross-examination, he admitted that he did not know what the item was just by feeling it through
appellant’s pants.
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Sergeant Hix also patted down appellant’s left front pocket and noticed an object that felt
like a cigarette pack. Hix removed the item from the pocket and determined that it was a
cigarette pack. Upon opening the pack, Hix discovered a glass tube that appeared to be a
smoking device. The burnt residue found on the device was later determined to be cocaine. Hix
testified that he opened the cigarette pack to make sure that the pack did not contain any
weapons, such as razor blades. Sergeant Hix placed the contraband on top of his police vehicle.
During this interaction, Sergeant Hix spoke to appellant about the incident. Appellant told
Sergeant Hix that he “pulled the knife to keep [the brother] from leaving him” at the home of his
estranged wife.
As Sergeant Hix concluded his interaction with appellant, a second law enforcement
officer arrived at the scene. Once the second officer arrived on the scene, Hix went to speak with
appellant’s brother. The brother testified that he was driving appellant to the home of appellant’s
estranged wife because the brothers had “had a falling out.” The brother stopped the car outside
the wife’s home and began to place appellant’s belongings out on the wife’s property by the edge
of the road. Because appellant had previously been ordered not to trespass on his wife’s
property, appellant protested and asked his brother to drive him to Maryland, but the brother
refused. The brother then grabbed appellant by the arm and tried to pull appellant out of the car.
Appellant then told his brother that he would stab him if he did not let him go.
Appellant then called the sheriff’s department “to try to get them to do something about
[the brother] trying to force him to stay on the property that he wasn’t supposed to be on.” The
brother heard appellant tell the dispatcher over the phone that appellant had a knife and that he
would cut the brother’s car seats with it. Appellant then took the knife out of his pocket and
unfolded the blade while he remained on the phone. The brother told Sergeant Hix that he was
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afraid when appellant pulled out the knife.1 When Hix completed his interview of the brother, he
arrested appellant at 11:56 a.m. for misdemeanor assault.
At the suppression hearing, appellant argued that the search and seizure of him were
impermissible under Terry v. Ohio, 392 U.S. 1 (1968). Regarding the vial found in appellant’s
right pocket, the trial court found that “given its shape and its extremely small dimensions, no
officer could have reasonably taken the glass vial for a knife or any other weapon.” The court
noted that Hix acknowledged in his testimony that “he did not know what the item was, and,
apparently, he just decided he would find out.” Regarding the removal and subsequent
inspection of the cigarette pack, the trial court concluded, “Such actions were plainly not
permitted as part of a Terry frisk.” However, the trial court ultimately denied appellant’s motion
to suppress. The court concluded, “Having reviewed the evidence, the Court finds that Sergeant
Hix, seeing what he did upon his arrival, would have had probable cause to believe that the
defendant was assaulting his brother by brandishing a knife at him.” The court specifically
found that Sergeant Hix had “probable cause to place the defendant under arrest for the crime of
assault and to search him incident to arrest.” The trial court further concluded that the evidence
would have been inevitably discovered because “Sergeant Hix had all the beliefs that he needed
to make the ultimate discovery and was pursuing this process prior to his excessive searching.”
Accordingly, the trial court found that “the two items allegedly possessing a controlled substance
should not be suppressed, given application of the inevitable discovery doctrine.”
1
At the suppression hearing, however, the brother testified that he never felt physically
threatened because he and appellant had “threatened each other in the past.”
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II. ANALYSIS
A. Standard of Review
This Court reviews the trial court’s denial of appellant’s motion to suppress in accord
with familiar principles. In cases involving Fourth Amendment issues, “we give deference to the
historical facts determined by the circuit court, but we review de novo whether the legal standard
of probable cause was correctly applied to the historical facts.” Brown v. Commonwealth, 270
Va. 414, 419, 620 S.E.2d 760, 762 (2005).
B. Inevitable Discovery Doctrine
Appellant first argues that the search of appellant’s pants pockets exceeded a Terry frisk
and was unreasonable. He next argues that the trial court erred when it found that the evidence
was admissible pursuant to the inevitable discovery doctrine. Assuming, without deciding, that
Sergeant Hix’s search of appellant’s pants pockets was improper, we conclude the challenged
evidence was nevertheless admissible under the inevitable discovery doctrine.
“Ordinarily, evidence obtained as the result of an unlawful search is subject to
suppression under the exclusionary rule.” Commonwealth v. Jones, 267 Va. 532, 535, 593
S.E.2d 204, 206 (2004) (citing Weeks v. United States, 232 U.S. 383 (1914); Hart v.
Commonwealth, 221 Va. 283, 287, 269 S.E.2d 806, 809 (1980)). However, “[o]ne of the
exceptions to the exclusionary rule is the doctrine of inevitable discovery.” Id. In order to
invoke the inevitable discovery doctrine, the Commonwealth must establish by a preponderance
of the evidence that the seized items “‘ultimately or inevitably would have been discovered by
lawful means’” despite the illegal conduct. Id. at 536, 593 S.E.2d at 206 (quoting Nix v.
Williams, 467 U.S. 431, 444 (1984)). The inevitable discovery exception permits admission of
the challenged evidence if the Commonwealth shows “‘(1) a reasonable probability that the
evidence in question would have been discovered by lawful means but for the police
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misconduct’” and “‘(2) that the leads making the discovery inevitable were possessed by the
police at the time of the misconduct.’” Id. at 536, 593 S.E.2d at 207 (quoting United States v.
Cherry, 759 F.2d 1196, 1204 (5th Cir. 1985)).
In Jones, the defendant was seen fleeing from law enforcement officers while holding a
firearm in his right hand. After Jones was detained, one of the officers searched Jones’s person
without probable cause and found cocaine in his pocket. The Supreme Court found, because it
was the normal practice of that police officer to run a criminal history check when he found
someone in possession of a firearm, that it was reasonably probable that the officer would have
discovered that Jones was subject to arrest on a weapons charge and searched him incident to
that arrest. Id. at 537, 593 S.E.2d at 207. Thus, the Supreme Court applied the inevitable
discovery doctrine even though the officer did not obtain Jones’s criminal history until after
Jones had been arrested for possession of the drugs found during the improper search. Id. at 535,
593 S.E.2d at 206. Likewise, in Copeland v. Commonwealth, 42 Va. App. 424, 592 S.E.2d 391
(2004), this Court applied the inevitable discovery doctrine where the record showed that
probable cause existed to arrest the defendant for an independent drug possession charge and
where a search incident to that arrest would have yielded the other drugs ultimately discovered in
the defendant’s pocket during the unlawful search. Id. at 438-39, 592 S.E.2d at 397-98.
Returning to the present matter, the Court now applies the two-part test from Jones. First,
we find that the evidence recovered from appellant would have been discovered by lawful means
but for the alleged police misconduct. The evidence established that Sergeant Hix responded to a
911 call reporting an altercation involving an individual armed with a knife outside of a home on
Labor Lane. When Sergeant Hix arrived at that exact address, he observed two males standing
on opposite sides of a narrow roadway separated by about twenty feet. One of the males,
appellant, was holding a three to four-inch folding knife in his right hand with the blade open and
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extended. When appellant saw Sergeant Hix approach in his marked police cruiser, appellant
immediately removed the knife from his hand and placed it on the hood of the vehicle next to
him. The evidence also established that Sergeant Hix interviewed the brother as part of his
investigation. The brother told Hix that appellant had threatened to stab him if he did not drive
appellant away from appellant’s wife’s property. The brother also stated that he felt fear when
appellant displayed the knife.
Based on this record, we find that Sergeant Hix, without relying on his search of
appellant, developed probable cause to arrest appellant for assault. See Taylor v.
Commonwealth, 222 Va. 816, 820, 284 S.E.2d 833, 836 (1981) (“Probable cause exists when the
facts and circumstances within the officer’s knowledge, and of which he has reasonably
trustworthy information, alone are sufficient to warrant a person of reasonable caution to believe
that an offense has been or is being committed.”). Because Hix had probable cause to believe
that appellant had committed an assault, he was also authorized to arrest appellant for assault.
Pursuant to that arrest, it follows logically that Hix would have conducted a search of appellant’s
person incident to the arrest that would have yielded both items of contraband found in
appellant’s front pants pockets.
Applying the second part of the inevitable discovery test, we find that the lead making the
discovery of the drugs in appellant’s pockets inevitable was known to Sergeant Hix prior to the
search of appellant. When Sergeant Hix responded to the scene of a reported altercation
involving a subject armed with a knife, he observed appellant holding out a knife in relatively
close proximity to his brother. Pursuant to that lead, appellant spoke to the brother, who told Hix
that appellant had threatened to stab him and that he felt fear when appellant displayed the knife.
Thus, the record is clear that Sergeant Hix’s pursuit of leads unrelated to his search of appellant’s
pockets led him to develop probable cause to arrest appellant for assault. The probable cause to
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arrest appellant also permitted Hix to search appellant incident to that arrest, leading inevitably
to the discovery of the contraband in appellant’s pockets. Accordingly, we find that Sergeant
Hix possessed sufficient information and leads prior to the allegedly unlawful search that made
the discovery of the drugs inevitable.
As the Supreme Court noted in Jones, the purpose of the inevitable discovery doctrine is
to ensure that the prosecution is not “put in a worse position simply because of some earlier
police error or misconduct when the evidence would inevitably have been discovered.” 267 Va.
at 538, 593 S.E.2d at 208. Here, if Sergeant Hix had never searched appellant’s pockets, Hix
still would have obtained probable cause to arrest appellant for assault, arrested him for that
offense, and then searched appellant incident to that arrest and discovered the drugs. Therefore,
we find that it is clear that there was “‘a reasonable probability that the evidence in question
would have been discovered by lawful means’” and that “‘the leads making the discovery
inevitable were possessed by the police at the time of the misconduct.’” Id. at 536, 593 S.E.2d at
207 (quoting Cherry, 759 F.2d at 1204). For these reasons, we find that the trial court did not err
in admitting the challenged evidence pursuant to the inevitable discovery doctrine.2
2
The trial court also denied appellant’s motion to suppress appellant’s statement
regarding the PCP found in his pocket. The trial court held that no interrogation, or its functional
equivalent, had taken place and that appellant was not in custody for the purposes of Miranda v.
Arizona, 384 U.S. 436 (1966). On appeal, appellant has not challenged the ruling that no
Miranda violation took place. In addition, while appellant argues that the drugs were not subject
to the inevitable discovery doctrine, he has not raised that same argument on appeal about
inevitable discovery of his initial statements to Sergeant Hix regarding the PCP.
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III. CONCLUSION
In summary, assuming without deciding that Sergeant Hix’s search of appellant’s pockets
was an improper search at the time it was made, we find that the challenged evidence was
nevertheless admissible pursuant to the inevitable discovery doctrine. The drugs would have
been inevitably discovered by lawful means, given that the information and leads making the
discovery inevitable were possessed by the police at the time of the search. Therefore, we find
that the trial court did not err in denying appellant’s motion to suppress, and we affirm
appellant’s convictions.
Affirmed.
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