Present: Hassell, C.J., Koontz, Kinser, Lemons, Goodwyn, and
Millette, JJ., and Carrico, S.J.
JAMES PERRY
v. Record No. 092418 OPINION BY JUSTICE DONALD W. LEMONS
November 4, 2010
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
In this appeal, we consider whether the Court of Appeals
erred when it affirmed the trial court’s denial of James Edward
Perry’s (“Perry”) motion to suppress and his conviction for
possession of phencyclidine (“PCP”).
I. Facts and Proceedings Below
At approximately 2:00 a.m. on the morning of October 15,
2006, Trooper Clinton A. Weidhaas (“Trooper Weidhaas”) was
traveling on Interstate 66 in Arlington County when he noticed
a vehicle with its emergency flashers activated parked on a
“pretty well lit” area of the right shoulder. With the
intention of assisting the occupants, Trooper Weidhaas pulled
off the interstate with his emergency equipment activated, and
he exited and approached the vehicle.
Upon reaching the vehicle, Trooper Weidhaas observed that
all four windows and the sunroof were open, and he “detected a
strong odor of marijuana coming from that vehicle.” The
vehicle had three occupants: Valdemere Perry (“Valdemere”) was
the driver of the vehicle, Maurice Sprurgeon (“Sprurgeon”) was
the front-seat passenger, and Perry was in the back seat.
Upon checking Valdemere’s driving record, Trooper Weidhaas
discovered that Valdemere’s license was suspended. Trooper
Weidhaas called for a back-up unit; this second trooper watched
Valdemere from behind the vehicle. Sometime thereafter,
Trooper Weidhaas approached Sprurgeon, whose demeanor Trooper
Weidhaas described as “visibly impaired.” “He wasn’t very
responsive” to questions, he was “somewhat slow [and] slow to
react,” “unsteady, [and he] had a hard time keeping his
balance.” Trooper Weidhaas initially suspected that Sprurgeon
was “under the influence of something, either marijuana or
something stronger, [such as] PCP, because he was definitely
not coherent.”
Trooper Weidhaas asked Sprurgeon to exit the vehicle. As
he did, Trooper Weidhaas saw “a small vial with an orange-
reddish cap come out of [Sprurgeon’s] right hand in a throwing
motion, onto the ground.” Upon hitting the ground the cap came
off, and Trooper Weidhaas observed “a dark plant-like material”
that appeared as if it “had been soaked in something.” Trooper
Weidhaas expressed his concern that there were only two
troopers present at the scene, while “[t]here [were] three of
them.” He expressed particular concern that “[t]hey could
overpower the officer and all the weapons that we have to
defend ourselves may not work on some [people under the
influence] of these certain types of drugs [such] as PCP.” He
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further indicated a concern that these suspects, if under the
influence of such substances, would “have no pain whatsoever”
and “can go from being at a low to a high, high strung, in a
matter of minutes.” While unable to recall the exact time of
arrival, Trooper Weidhaas testified that a third trooper
arrived sometime during or after his interaction with
Sprurgeon.
Trooper Weidhaas placed Sprurgeon under arrest “for
possession of a controlled substance.” When asked whether he
had “smoked anything tonight,” Sprurgeon admitted that he had
“smoked some PCP earlier.” A field test of the substance in
the vial recovered from Sprurgeon returned positive results for
both PCP and marijuana.
Finally, Trooper Weidhaas approached Perry, whose demeanor
he described as “exactly like Sprurgeon’s.” Perry was “[s]low
to respond,” “[n]ot very coherent,” and “[u]nsteady when I got
him out of the car.” Once Perry was out of the vehicle,
Trooper Weidhaas “got him up to the front of the car and did a
patdown for weapons.” When performing a pat-down on suspects,
Trooper Weidhaas stated that he “squeeze[s] their pockets as
well.”
In Perry’s front pocket, Trooper Weidhaas detected “a
bundle,” which he described as a “bulge” that had the “same
size, same round feeling, [and] same length as the vial that
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was previously thrown on the ground [by Sprurgeon].” On cross
examination, Trooper Weidhaas testified that he detected the
bulge in Perry’s pocket “between [his] thumb and . . . index
finger,” and he felt it “[s]omewhere between two and three”
times.
Trooper Weidhaas then asked Perry, “[w]ould you mind
showing what’s in your pockets,” and Perry “took his right
hand, reached down in his pocket” and produced “the same type
[of] vial.” When asked about the vial’s contents, Perry
responded that it contained marijuana. Perry also admitted to
smoking PCP earlier that night. Trooper Weidhaas then placed
Perry under arrest.
Prior to his trial for possession of PCP in violation of
Code § 18.2-250, Perry filed a motion to suppress. Perry
claimed his rights under the United States and Virginia
Constitutions were violated because (i) “[t]here existed no
reasonable articulable suspicion or otherwise lawful cause to
frisk,” and (ii) “[t]here existed no probable cause or
otherwise lawful cause justifying the search and seizure of the
property.” Perry argued that as a result, “[a]ll evidence
obtained by law enforcement subsequent to, or as a result of,
such improper action [were] inadmissible ‘fruit of the
poisonous tree’ and must be suppressed.”
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In support of his motion to suppress, Perry argued that
Trooper Weidhaas “did not have a reasonable basis to believe
that [Perry] was armed and dangerous. And therefore, the Terry
frisk of James Perry was unlawful.” Perry also argued that,
assuming the pat-down search was lawful, “Trooper Weidhaas
exceeded . . . the permissible scope” of the pat-down by
manipulating the contents of Perry’s pocket with his thumb and
fingers.
The Commonwealth responded that “suspicion of narcotics
possession gives rise . . . to an inference of dangerousness,
. . . which makes a Terry search under those circumstances
appropriate.” The Commonwealth then argued that Trooper
Weidhaas “had probable cause to believe that the items that he
felt and that he brushed up against did contain contraband.”
As a result, the Commonwealth argued that Trooper Weidhaas “had
probable cause to go into [Perry’s] pocket.”
The trial court observed that this was “a very close
case,” but denied Perry’s motion to suppress. At his trial, a
jury found Perry guilty of possession of PCP and fixed his
penalty at $2,500.
The Court of Appeals affirmed Perry’s conviction. Perry
v. Commonwealth, 55 Va. App. 122, 133, 684 S.E.2d, 227, 232
(2009). Applying the right result for the wrong reason
doctrine, the Court of Appeals “assume[d] without deciding that
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the trial court erred when it found [that] Trooper Weidhaas had
reasonable articulable suspicion to believe [Perry] was armed
and dangerous.” Id. Instead, the Court of Appeals held that
Trooper Weidhaas “certainly had probable cause to believe that
[Perry] possessed illegal drugs--either by having joint or
constructive possession of the drugs originally in Sprurgeon’s
hand or by having actual possession of other drugs that the
officer had not yet seen.” Id. at 132, 684 S.E.2d at 231.
Despite the acknowledgment of the Commonwealth that it never
argued to the trial court that Trooper Weidhaas had probable
cause to arrest Perry, id. at 128, 684 S.E.2d at 229, the Court
of Appeals held that “the parties here were aware at all stages
of this case that the courts would look to the Fourth Amendment
to determine if Trooper Weidhaas’s actions were appropriate--
regardless of whether the question involved probable cause or
reasonable articulable suspicion.” Id. at 130, 684 S.E.2d at
230.
Citing this Court’s holding in Whitehead v. Commonwealth,
278 Va. 105, 677 S.E.2d 265 (2009), the Court of Appeals
determined that “[a]ll the facts required to consider [the
Commonwealth’s probable cause to arrest] legal argument were
presented to the trial court and considered by it when it
addressed the Fourth Amendment reasonable suspicion argument of
the trial prosecutor.” Perry, 55 Va. App. at 130, 684 S.E.2d
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at 230. Therefore, the Court of Appeals concluded that this
case presented an appropriate situation for the application of
the right result for the wrong reason doctrine. Id.
Accordingly, the Court of Appeals affirmed the trial court’s
denial of Perry’s motion to suppress and his subsequent
conviction. Id. at 133, 684 S.E.2d at 232.
Perry timely filed his notice of appeal and we granted an
appeal on the following assignments of error:
1. The Circuit Court erred in denying Appellant’s
motion to suppress evidence obtained in violation
of his constitutional rights.
2. The Court of Appeals erred by considering a new
justification for the illegal search, which was
never presented to the trial court.
3. The Court of Appeals erred in finding that
Trooper Weidhaas had probable cause to arrest
Appellant at the time of the illegal search.
II. Analysis
A. Standard of Review
On appeal, this Court reviews “questions of law de novo,
including those situations where there is a mixed question of
law and fact.” Westgate at Williamsburg Condo. Ass’n v. Philip
Richardson Co., 270 Va. 566, 574, 621 S.E.2d 114, 118 (2005).
See Jones v. Commonwealth, 279 Va. 521, 527, 690 S.E.2d 95, 99
(2010). Additional well-established principles of appellate
review guide this Court’s analysis.
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We consider the evidence and all reasonable
inferences fairly deducible therefrom in the
light most favorable to the Commonwealth, the
prevailing party at trial. Reid v.
Commonwealth, 256 Va. 561, 564, 506 S.E.2d 787,
789 (1998). We apply the same standard when, as
here, we review the trial court’s denial of the
defendant’s motion to suppress the evidence.
Ewell [v. Commonwealth, 254 Va. 214, 217, 491
S.E.2d 721, 723 (1997).]
Bass v. Commonwealth, 259 Va. 470, 475, 525 S.E.2d 921, 924
(2000).
B. The Right Result for the Wrong Reason Doctrine
Perry argues that the Court of Appeals erred in applying
the right result for the wrong reason doctrine to hold that
Trooper Weidhaas had probable cause to arrest Perry. The
Commonwealth argues that our decision in Whitehead requires
that we affirm the judgment of the Court of Appeals. We agree
with the Commonwealth.
Under the right result for the wrong reason doctrine, “it
is the settled rule that how[ever] erroneous . . . may be the
reasons of the court for its judgment upon the face of the
judgment itself, if the judgment be right, it will not be
disturbed on account of the reasons.” Schultz v. Schultz, 51
Va. (10 Gratt.) 358, 384 (1853).
In Whitehead, we properly embraced the correct focus of
the right result for the wrong reason doctrine when we stated
that cases are only proper for application of the right result
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for the wrong reason doctrine when the evidence in the record
supports the new argument on appeal, and the development of
additional facts is not necessary. 278 Va. at 115, 677 S.E.2d
at 270. If the record does not support the arguments made for
the first time on appeal, then application of the right result
for the wrong reason doctrine is inappropriate and those new
arguments will not be considered.
We declined to apply the right result for the wrong reason
doctrine in Whitehead because the legal methods of proof,
offered for the first time before the Court of Appeals,
required different presentation of facts in order to support
the elements of the offense charged. Id. at 115, 677 S.E.2d at
270. Whitehead was charged with receiving stolen property--an
offense for which there were several methods of proof. Id. In
refusing to apply the right result for the wrong reason
doctrine, we cited the Court of Appeals and explained:
An appellate court may affirm the judgment of a
trial court when it has reached the right result
for the wrong reason. However, [t]he rule does
not always apply. . . . [T]he proper application
of this rule does not include those cases where,
because the trial court has rejected the right
reason or confined its decision to a specific
ground, further factual resolution is needed
before the right reason may be assigned to
support the trial court’s decision.
Whitehead, 278 Va. at 115, 677 S.E.2d at 270 (citing Harris v.
Commonwealth, 39 Va. App. 670, 675-76, 576 S.E.2d 228, 231
9
(2003)); Blackman v. Commonwealth, 45 Va. App. 633, 642, 613
S.E.2d 460, 465 (2005) (“an appellee may argue for the first
time on appeal any legal ground in support of a judgment so
long as it does not require new factual determinations.”) We
further explained that because a conviction based upon the
Commonwealth’s alternative theories of guilt “is predicated
upon presentation of different facts that support the elements
of the offense,” we found that “Whitehead was not on notice to
present evidence to rebut any other method of proof possible.”
278 Va. at 115-16, 677 S.E.2d at 270.
Indeed, other cases we have decided express this limited
principle as well. When the trial court has reached the correct
result for the wrong reason, but the record supports the right
reason, “we will assign the correct reason and affirm that
result.” Mitchem v. Counts, 259 Va. 179, 191, 523 S.E.2d 246,
253 (2000); Chesterfield County v. Stigall, 262 Va. 697, 704,
554 S.E.2d 49, 53 (2001). Furthermore, an appellate court’s
“examination is not limited to the evidence mentioned by a
party in trial argument or by the trial court in its ruling.”
Bolden v. Commonwealth, 275 Va. 144, 147, 654 S.E.2d 584, 586
(2008). Rather, “an appellate court must consider all the
evidence admitted at trial that is contained in the record.”
Id.
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In another aspect of the Whitehead opinion, we accurately
summarized our holding in Eason v. Eason, 204 Va. 347, 352, 131
S.E.2d 280, 283 (1963), when we stated:
However, cases in which the party seeking
affirmance failed to present the argument in the
trial court, such that the trial court did not
have an opportunity to rule on the argument, are
not “proper cases” for the application of the
doctrine.
Whitehead, 278 Va. at 114, 677 S.E.2d at 270. However, upon
reconsideration of the case law on this matter, we are of the
view that this principle, adopted from Eason, is too broad and
is inconsistent with case law that followed it. Failure to make
the argument before the trial court is not the proper focus of
the right result for the wrong reason doctrine. Consideration
of the facts in the record and whether additional factual
presentation is necessary to resolve the newly-advanced reason
is the proper focus of the application of the doctrine.
In this case, the facts necessary to resolve the issues of
reasonable articulable suspicion for a Terry stop, reasonable
articulable suspicion for a pat-down, and probable cause to
arrest for possession were established in the record before the
trial court. The Court of Appeals correctly held that “[a]ll
the facts required to consider [the Commonwealth’s] legal
argument [concerning probable cause to arrest] were presented
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to the trial court.” Perry, 55 Va. App. at 130, 684 S.E.2d at
230.
Additionally, both parties were aware that Fourth
Amendment search and seizure issues were before the court. The
Court of Appeals held that “the parties here were aware at all
stages of this case that the courts would look to the Fourth
Amendment to determine if Trooper Weidhaas’s actions were
appropriate – regardless of whether the question involved
probable cause or reasonable articulable suspicion.” Id. at
130, 684 S.E.2d at 230.
The United States Supreme Court has emphasized the
distinction between “reasonable articulable suspicion” and
“probable cause,” explaining that reasonable suspicion is
“considerably less than proof of wrongdoing by a preponderance
of the evidence,” and “obviously less demanding than that for
probable cause.” United States v. Sokolow, 490 U.S. 1, 7
(1989). However, the underlying facts required to prove that
Trooper Weidhaas had reasonable suspicion to stop and frisk
Perry are the same as those required to consider whether he had
probable cause to arrest Perry for possession. The factual
record is complete; the conclusion to be drawn from these
facts, namely, whether these facts support reasonable suspicion
or probable cause, may be decided on this record.
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The United States Supreme Court and the Fourth Circuit
Court of Appeals both support the rule that the record must
support the “right reason.” The Supreme Court has held that
“the appellee [is] free to defend its judgment on any ground
properly raised below whether or not that ground was relied
upon, rejected, or even considered by the [trial court] or the
Court of Appeals.” Washington v. Confederated Bands & Tribes
of Yakima Indian Nation, 439 U.S. 463, 476 n.20 (1979). The
Court has explained,
it is likewise settled that the appellee may,
without taking a cross-appeal, urge in support of
a decree any matter appearing in the record,
although his argument may involve an attack upon
the reasoning of the lower court or an insistence
upon matter overlooked or ignored by it.
United States v. American Ry. Express Co., 265 U.S. 425, 435
(1924) (emphasis added). Similarly, the Fourth Circuit Court
of Appeals has stated that “[a] prevailing party may urge an
appellate court to affirm a judgment on any ground appearing in
the record.” Rosenruist-Gestao E Servicos LDA v. Virgin
Enters. Limited, 511 F.3d 437, 447 (4th Cir. 2007) (emphasis
added) (internal quotation marks omitted). An appellate court
is not limited to the grounds offered by the trial court in
support of its decision, and it is “entitled to affirm the
court’s judgment on alternate grounds, if such grounds are
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apparent from the record.” MM v. School District of Greenville
County, 303 F.3d 523, 536 (4th Cir. 2002) (emphasis added).
Likewise, in the case before us today, we apply the right
result for the wrong reason doctrine because the facts in the
record establish that Trooper Weidhaas had probable cause to
arrest Perry for possession of PCP before the pat-down search.
Addressing the specific assignment of error, we cannot say that
the Court of Appeals erred in applying the right result for the
wrong reason doctrine to hold that the trooper had probable
cause to arrest Perry before the pat-down search. Trooper
Weidhaas noted the smell of drugs in the vehicle, verified the
existence of PCP in the vial thrown on the ground, and
identified Perry’s behavior as being consistent with that of an
individual under the influence of PCP. At that point, based on
his training and experience as a police officer, Trooper
Weidhaas had probable cause to believe that Perry possessed
PCP. As a result, the subsequent search of Perry was a lawful
search incident to arrest under the Fourth Amendment. See
Chimel v. California, 395 U.S. 752, 763 (1969); see also Wright
v. Commonwealth, 222 Va. 188, 193, 278 S.E.2d 849, 852-53
(1981) (“Where, as here, the product of the search was not
essential to probable cause to arrest and the formal arrest
followed quickly on the heels of the challenged search of [the
defendant’s] person, we do not believe it particularly
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important that the search preceded the arrest rather than vice
versa.”) (internal quotation marks omitted).
III. Conclusion
For the reasons stated herein, we hold that the Court of
Appeals did not err in affirming the trial court’s denial of
Perry’s motion to suppress and affirming Perry’s conviction on
the basis of probable cause to arrest. Accordingly, we will
affirm the judgment of the Court of Appeals.
Affirmed.
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