Murphy v. Commonwealth

PRESENT: All the Justices

PHILLIP JEROME MURPHY

v. Record No. 020771 OPINION BY JUSTICE BARBARA MILANO KEENAN
November 1, 2002
COMMONWEALTH OF VIRGINIA

FROM THE COURT OF APPEALS OF VIRGINIA

In this appeal, we consider whether the Court of Appeals

erred in affirming a defendant's convictions on the ground that

evidence seized from his person was obtained after a lawful "pat

down" search conducted incident to the execution of a search

warrant at another person’s residence.

Phillip J. Murphy was indicted for possession of heroin

with intent to distribute, second or subsequent offense, and for

possession of cocaine with intent to distribute, second offense,

in violation of Code § 18.2-248(C). The controlled substances

were found on Murphy's person when he was in a residence that

was searched pursuant to a search warrant executed by officers

of the City of Franklin Police Department. Murphy was convicted

of the offenses in the Circuit Court of Southampton County. The

court sentenced Murphy for the heroin conviction to a term of 20

years' imprisonment, with 16 years suspended, and for the

cocaine conviction to a term of ten years' imprisonment, with

six years suspended.
 Murphy appealed his convictions to the Court of Appeals,

which affirmed the trial court's judgment. Murphy v.

Commonwealth, 37 Va. App. 556, 574, 559 S.E.2d 890, 898 (2002).

The Court of Appeals held that Murphy "was lawfully detained and

frisked and that the subsequent seizure of contraband was also

lawful." Id. at 562, 559 S.E.2d at 892. Murphy appealed the

Court of Appeals' judgment.

Under established principles of appellate review, we will

state the evidence in the light most favorable to the

Commonwealth, the prevailing party in the trial court, and will

accord the Commonwealth the benefit of all reasonable inferences

fairly deducible from that evidence. Armstrong v. Commonwealth,

263 Va. 573, 576, 562 S.E.2d 139, 140 (2002); Stephens v.

Commonwealth, 263 Va. 58, 59-60, 557 S.E.2d 227, 228 (2002).

In September 1999, the police obtained a search warrant for

a residence at 410 Hall Street in the City of Franklin. The

search warrant authorized the police to search "the entire

residence" for "marijuana, cocaine, cocaine base, heroin,

scales, ledgers, logs, money, guns, phone bills, syringes and

any other item that would be connected with the illegal sale

and/or use of any other illegal narcotic or non-prescription

drug." The warrant also authorized the officers to search a

person named Eric Smith but did not authorize a search of any

other individuals present in the house.

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 In executing the warrant, the officers entered the

residence where they found four men, including Murphy and Smith.

Officer Richard Harvey, a member of the "entry team," observed

Murphy sitting on a couch in the living room, and ordered him to

lie down facing the floor and to "put his hands out." After

placing handcuffs on Murphy, Harvey frisked him for weapons.

Harvey felt a bulge in the left front pocket of Murphy's

pants, and sensed that the object was a "plastic baggy." Based

on his training and experience, Harvey concluded that the bag

contained marijuana. He retrieved the bag from Murphy's pocket

and determined that it appeared to contain marijuana. Harvey

placed Murphy under arrest for possession of marijuana.

When asked to identify himself after his arrest, Murphy

mumbled "Phillip" in a muffled voice "as if he had [his] mouth

full of something." The police ordered Murphy to release the

objects concealed in his mouth, and Murphy ultimately spat out a

folded one dollar bill, seven "blue envelope-type packages"

containing a total of 0.308 grams of heroin, and ten "rocks" of

crack cocaine weighing a total of 8.02 grams.

Before trial, Murphy filed a motion to suppress the seized

evidence and argued, among other things, that the seizure of the

plastic bag was unlawful because it was not a weapon and the

"pat down" search did not disclose "anything that came close to

appearing to be a weapon." During a hearing on the motion,

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Officer Harvey testified that after he felt the bulge in

Murphy's pocket, he knew that the object in Murphy's pocket was

"a plastic baggy," and that from his training and experience he

knew that such bags commonly are used to package marijuana.

Based on these facts, Harvey concluded that the bag contained

marijuana. The trial court denied Murphy's suppression motion.

At trial, Officer Harvey gave additional testimony

concerning his "pat down" search of Murphy, stating that:

I felt a bulge of plastic, . . . which is the way I
commonly knew marijuana to be packaged. I could hear
the plastic rattle as the pat-down had taken place and
feeling the item through the pants I recognized it to
be the way marijuana was packaged.

At the conclusion of the evidence, Murphy renewed his motion to

suppress, which the trial court denied. The court found Murphy

guilty of both offenses, and Murphy appealed the trial court’s

judgment.

In the Court of Appeals, Murphy advanced various arguments,

including the contention that even if the "pat down" search was

lawful, Officer Harvey "exceeded the scope of a weapons frisk by

seizing an object that was clearly not a weapon." Murphy, 37

Va. App. at 562, 559 S.E.2d at 892. The Court of Appeals

affirmed Murphy’s convictions holding, in relevant part, that

Officer Harvey's seizure of the marijuana was lawful because he

identified the plastic bag "when he first felt it" and he

concluded, based on his training and experience, that the bag

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contained marijuana. Id. at 572-73, 559 S.E.2d at 897. The

Court also concluded that the seizure of the contraband

concealed in Murphy's mouth was lawful because the contraband

was obtained during "a full search incident to a lawful

custodial arrest." Id. at 574 n.7, 559 S.E.2d at 898 n.7.

On appeal to this Court, Murphy argues, among other things,

that Officer Harvey did not have probable cause to remove the

plastic bag from his pants pocket because the character of the

bag’s content as contraband was not "immediately apparent" from

the frisk. Murphy asserts that Harvey merely felt the presence

of a "plastic baggy" and knew that marijuana is often packaged

in plastic bags. Thus, Murphy contends that the seizure of the

marijuana did not provide a lawful basis for the police to seize

the controlled substances concealed in his mouth.

In response, the Commonwealth argues that Officer Harvey

lawfully seized the plastic bag containing marijuana from

Murphy's pocket under the "plain feel doctrine" articulated in

Minnesota v. Dickerson, 508 U.S. 366 (1993). The Commonwealth

asserts that, based on Harvey's training and experience, he

concluded that the object in Murphy's pocket was marijuana, and

that this conclusion was supported by the search warrant, which

had established probable cause to believe that marijuana was

present on the premises. The Commonwealth further contends that

the heroin and cocaine obtained from Murphy's mouth were seized

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incident to the lawful arrest for possession of marijuana. We

disagree with the Commonwealth’s arguments.

In determining the issue presented, we apply an established

standard of review. A defendant’s claim that evidence was

seized in violation of the Fourth Amendment presents a mixed

question of law and fact that we review de novo on appeal.

Bolden v. Commonwealth, 263 Va. 465, 470, 561 S.E.2d 701, 704

(2002); McCain v. Commonwealth, 261 Va. 483, 489, 545 S.E.2d

541, 545 (2001); see also Ornelas v. United States, 517 U.S.

690, 691, 699 (1996). In making such a determination, we give

deference to the factual findings of the trial court and

independently determine whether the manner in which the evidence

was obtained meets the requirements of the Fourth Amendment.

Bolden, 263 Va. at 470, 561 S.E.2d at 704; McCain, 261 Va. at

490, 545 S.E.2d at 545; Bass v. Commonwealth, 259 Va. 470, 475,

525 S.E.2d 921, 924 (2000). The defendant has the burden to

show that the trial court’s denial of his suppression motion,

when the evidence is considered in the light most favorable to

the Commonwealth, was reversible error. Bolden, 263 Va. at 470,

561 S.E.2d at 704; McCain, 261 Va. at 490, 545 S.E.2d at 545;

Fore v. Commonwealth, 220 Va. 1007, 1010, 265 S.E.2d 729, 731

(1980).

In Terry v. Ohio, 392 U.S. 1, 22 (1968), the Supreme Court

recognized that under appropriate circumstances, a police

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officer may detain a person in order to investigate what is

possibly criminal behavior, even though the officer lacks

probable cause to make an arrest. However, to justify such a

detention, the officer must be able to identify “specific and

articulable facts which, taken together with rational inferences

from those facts,” create a reasonable suspicion of criminal

activity. Id. at 21.

During an investigative stop authorized under Terry, an

officer may conduct a limited search for concealed weapons if

the officer reasonably believes that a criminal suspect may be

armed and dangerous. Florida v. J.L., 529 U.S. 266, 269-70

(2000); Adams v. Williams, 407 U.S. 143, 146 (1972); Harris v.

Commonwealth, 241 Va. 146, 150, 400 S.E.2d 191, 193-94 (1991);

Jones v. Commonwealth, 230 Va. 14, 19, 334 S.E.2d 536, 539-40

(1985). The purpose of this “pat down” search is not to uncover

evidence of criminal activity, but to permit the officer to

conduct his investigation without encountering a violent

response. Adams, 407 U.S. at 146; see Maryland v. Buie, 494

U.S. 325, 336 (1990); Michigan v. Long, 463 U.S. 1032, 1050

(1983).

In Minnesota v. Dickerson, the Supreme Court discussed the

seizure of contraband detected by sense of touch during such a

“pat down” search. The Court stated that

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 [i]f a police officer lawfully pats down a suspect’s outer
clothing and feels an object whose contour or mass makes
its identity immediately apparent, 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.

Id. at 375-76. However, when the character of the item is not

immediately apparent from the "pat down" search, and the officer

does not reasonably suspect that the item is a weapon, further

search regarding the item is not allowed because such an

evidentiary search is unrelated to the justification for the

frisk. See id. at 378; Lovelace v. Commonwealth, 258 Va. 588,

596-97, 522 S.E.2d 856, 860 (1999); Harris, 241 Va. at 151-52,

400 S.E.2d at 194-95.

In the present case, we will assume, without deciding, that

the execution of the search warrant for the premises permitted

Officer Harvey to conduct a "pat down" search of Murphy to

determine whether he carried a concealed weapon. Nevertheless,

we conclude that Harvey’s actions exceeded the permissible scope

of that limited search. Harvey did not testify that he sensed

from touching Murphy’s pocket that the item held there was a

weapon, nor did he state that the character of the object as

marijuana was immediately apparent to him from the "pat down"

search.

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 Instead, Harvey’s testimony established only that the

character of the object as a plastic bag was immediately

apparent from the "pat down" search, and that he knew from his

training and experience that plastic bags often are used to

package marijuana. This information was insufficient under the

holding in Dickerson to establish probable cause to search

Murphy’s pocket because Harvey’s conclusion that the bag

contained marijuana was not based on his tactile perception of

the bag’s contents. Rather, his sense of touch revealed only

that there was a plastic bag in Murphy’s pocket. Thus, Officer

Harvey lacked probable cause to seize the item from Murphy’s

pocket because the character of the bag’s contents as contraband

was not immediately apparent from the frisk. See Dickerson, 508

U.S. at 378-79; Lovelace, 258 Va. at 597, 522 S.E.2d at 860;

Harris, 241 Va. at 151-52, 400 S.E.2d at 194-95.

Our conclusion that Officer Harvey did not have probable

cause to seize the marijuana is not altered by the fact that

Murphy was present in a residence that was the subject of a

search warrant for illegal drugs. The record contains no

evidence linking him to the suspected presence of those drugs.

Therefore, we hold that the trial court erred in denying

Murphy’s motion to suppress evidence of the controlled

substances because those items were seized after Murphy was

arrested illegally based on the search of his pocket without

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probable cause. See Segura v. United States, 468 U.S. 796, 804

(1984); Bolden, 263 Va. at 473, 561 S.E.2d at 705; Reittinger v.

Commonwealth, 260 Va. 232, 237, 532 S.E.2d 25, 28 (2000).

We will reverse the judgment of the Court of Appeals,

vacate Murphy’s convictions, and remand the case to the Court of

Appeals with direction to remand the matter to the trial court

for further proceedings, if the Commonwealth be so advised.

Reversed and remanded.

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