Present: Hassell, C.J., Lacy, Keenan, Kinser, Lemons, and Agee,
JJ., and Carrico, S.J.
DAVID LEE MOORE
OPINION BY
v. Record No. 052619 SENIOR JUSTICE HARRY L. CARRICO
November 3, 2006
COMMONWEALTH OF VIRGINIA
FROM THE COURT OF APPEALS OF VIRGINIA
This appeal implicates Code § 19.2-74(A)(1). In pertinent
part, this Code section provides that when a police officer
detains a person for a Class 1 misdemeanor, the officer “shall
. . . issue a summons . . . to appear at a time and place to be
specified in such summons,” and “[u]pon the giving by such
person of his written promise to appear at such time and place,
the officer shall forthwith release him from custody.” The Code
section also contains several exceptions allowing a warrantless
arrest pursuant to Code § 19.2-82 “if any such person shall fail
or refuse to discontinue the unlawful act” or “if any person is
believed by the arresting officer to be likely to disregard a
summons . . . or . . . cause harm to himself or to any other
person.”
On February 20, 2003, two City of Portsmouth detectives,
responding to a radio message that a motorist was operating a
motor vehicle on a suspended license, stopped a vehicle being
driven by the defendant, David Lee Moore. The officers
ascertained that Moore was in fact operating on a suspended
license. Although the offense is a Class 1 misdemeanor, Code
§ 46.2-301(C), the officers did not issue Moore a summons but
arrested him, handcuffed him, and placed him in a police
vehicle. They gave him the Miranda 1 warnings and secured his
signature on a consent to search his room at the hotel where he
was staying. They then took him to the hotel room.
Because of a “miscommunication” between the officers, they
did not search Moore at the time he was arrested. Upon reaching
his hotel room, they searched his person and found approximately
16 grams of crack cocaine in his jacket pocket and $516.00 in
cash in his pants pocket. He admitted the cocaine was his.
Moore was indicted for possession of cocaine with intent to
distribute. Code § 18.2-248. He then moved to suppress all the
evidence obtained in the search of his person, 2 asserting that
the seizure of the evidence violated the provisions of the
Fourth, Fifth, and Sixth Amendments to the Constitution of the
United States.
The trial court denied the motion to suppress. In a bench
trial, the court convicted Moore of possession with intent to
1
Miranda v. Arizona, 384 U.S. 436 (1966).
2
In the hearing on the motion to suppress, one of the
arresting officers was asked why Moore was arrested rather than
given a summons. The officer replied, that it was “[j]ust our
prerogative, we chose to effect an arrest.”
2
distribute cocaine and sentenced him to serve five years in the
penitentiary, with one year and six months suspended.
Moore appealed his conviction to the Court of Appeals of
Virginia. A divided panel of the court reversed Moore’s
conviction, finding the search of Moore “in violation of the
Fourth Amendment.” Moore v. Commonwealth, 45 Va. App. 146, 155,
609 S.E.2d 74, 79 (2005). However, upon rehearing en banc, a
majority affirmed the conviction, finding that Moore’s arrest
did not violate his Fourth Amendment rights. Moore v.
Commonwealth, 47 Va. App. 55, 64, 622 S.E.2d 253, 258 (2005).
We awarded Moore this appeal.
On appeal, Moore argues that Code § 19.2-74 requires that
the police issue a summons to a person detained for a Class 1
misdemeanor and to forthwith release him from custody upon his
promise to appear at a specified time and place, unless he is
subject to one or more of the exceptions listed in the statute.
Moore asserts that none of the exceptions apply in this case. 3
3
The Court of Appeals found that “[b]ecause the record is
devoid of any evidence to suggest Moore failed to discontinue
the unlawful act, or that the facts could render a reasonable
belief that Moore would fail to comply with the summons or cause
harm to himself or others, . . . the arrest violated the express
provisions of Code § 19.2-74.” Moore, 47 Va. App. at 63, 622
S.E.2d at 257. The Commonwealth has not assigned cross-error to
this finding. Accordingly, we will not consider the
Commonwealth’s argument that “[i]nasmuch as there was no one
else to drive Moore’s vehicle, the officers were within their
statutory authority to arrest Moore; otherwise, he would have
been unable to ‘discontinue the unlawful act’ of driving on a
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Moore says that “[w]hen a person is unlawfully detained, as [he]
was when he was arrested rather than being given a citation, the
fruits of the unlawful detention must be suppressed.” Moore
concludes that the Court of Appeals en banc erred in holding
that his “arrest and search did not violate the Fourth
Amendment.”
On the other hand, the Commonwealth argues that the search
of Moore was valid. The Commonwealth maintains that “the police
officers had probable cause to arrest Moore because he committed
a misdemeanor in their presence,” and the “search incident to an
arrest . . . did not violate the Fourth Amendment.”
In support of his position, Moore cites the decision of the
Supreme Court of the United States in Knowles v. Iowa, 525 U.S.
113 (1998), and this Court’s decision in Lovelace v.
Commonwealth, 258 Va. 588, 522 S.E.2d 856 (1999). In Knowles,
an Iowa statute allowed a police officer to arrest a person for
a traffic offense and immediately take him before a magistrate
or to issue a citation in lieu of arrest. The statute further
provided that the issuance of a citation in lieu of arrest “does
not affect the officer’s authority to conduct an otherwise
lawful search.” 525 U.S. at 115 (citing and quoting Iowa Code
Ann. § 805.1(4)).
suspended license.” See Commonwealth v. Cary, 271 Va. 87, 90
n.1, 623 S.E.2d 906, 907 n.1 (2006).
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An Iowa policeman stopped Knowles for speeding and issued
him a citation rather than arresting him. The officer then
conducted a full search of the vehicle without either Knowles’
consent or probable cause, found marijuana and a “pot pipe,” and
placed Knowles under arrest. Knowles moved to suppress the
evidence. The trial court denied the motion and Knowles was
found guilty. The Supreme Court of Iowa affirmed, upholding the
constitutionality under a bright-line “search incident to
citation” exception to the Fourth Amendment’s warrant
requirement. Id. at 115.
The Supreme Court of the United States reversed. Noting
that the officer had issued Knowles a citation rather than
arresting him, the Court stated that the “[t]he question
presented is whether such a procedure authorizes the officer,
consistently with the Fourth Amendment, to conduct a full search
of the car.” The Court answered the question “no.” Id. at 114.
The Court explained that in United States v. Robinson, 414
U.S. 218 (1973), it had recognized a search incident to arrest
exception to the Fourth Amendment, which allows a full field-
type search of the person incident to a lawful custodial arrest.
The Court noted that the exception was based upon “two
historical rationales for the ‘search incident to arrest’
exception: (1) the need to disarm the suspect in order to take
him into custody, and (2) the need to preserve evidence for
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later use at trial.” Knowles, 525 U.S. at 116. However, the
Court found that “neither of these underlying rationales for the
search incident to arrest exception is sufficient to justify the
search in the present case.” Id. at 117.
The Court also said that while the concern for officer
safety in a routine traffic stop “may justify the ‘minimal’
additional intrusion of ordering a driver and passengers out of
the car, it does not by itself justify the often considerably
greater intrusion attending a full field-type search.” Id.
The Court also said that Iowa had not shown a need to discover
and preserve evidence. Id. at 118. Although asked to do so,
the Court declined to extend the bright-line search incident to
arrest exception to the Fourth Amendment recognized in Robinson
to include a search incident to citation, a situation, the Court
concluded, “where the concern for officer safety is not present
to the same extent and the concern for destruction or loss of
evidence is not present at all.” Id. at 119.
The Commonwealth argues that Knowles is not dispositive
because the defendant there was not arrested and the decision in
Knowles “holds that a search incident to a citation cannot be as
expansive under the Fourth Amendment as one incident to an
arrest.” We cannot find such a holding in Knowles. In any
event, it is clear that what the Court actually held in Knowles
was that the Fourth Amendment forbids expansion of the search
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incident to arrest exception to include a search incident to
citation. Id. at 118-19.
The Commonwealth also argues that the Supreme Court’s
subsequent decision in Atwater v. City of Lago Vista, 532 U.S.
318 (2001), is controlling rather than Knowles and supports its
position that the officers had probable cause to arrest Moore
because he committed a misdemeanor in their presence. In
Atwater, a police officer observed that Gail Atwater was driving
her pickup truck with her young son and daughter in the front
seat, all without seat belts. This conduct was prohibited by a
Texas statute providing for a fine of not less than $25.00 nor
more than $50.00. Id. at 323-24.
The officer pulled Atwater over, handcuffed her, placed her
in his squad car, and drove her to the local police station,
where she was placed in a jail cell for about one hour, after
which she was taken before a magistrate and released on bond.
She ultimately pleaded no contest to the seat belt charges and
paid a $50.00 fine. Id. at 324.
Atwater and her husband then filed an action in state court
for damages against the officer, the City of Lago Vista, and the
City’s chief of police, alleging that the defendants had
violated Gail Atwater’s Fourth Amendment rights. The action was
removed to federal court. The Atwaters were unsuccessful in the
lower courts, and the Supreme Court granted certiorari “to
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consider whether the Fourth Amendment, either by incorporating
common-law restrictions on misdemeanor arrests or otherwise,
limits police officers’ authority to arrest without warrant for
minor criminal offenses.” Id. at 326. The Court held that
“[i]f an officer has probable cause to believe that an
individual has committed even a very minor criminal offense in
his presence, he may, without violating the Fourth Amendment,
arrest the offender.” Id. at 354.
Atwater, however, provides little support for the
Commonwealth’s position in this case. The Texas statute
“expressly authorizes ‘any peace officer [to] arrest without
warrant a person found committing a violation’ of [the Texas]
seatbelt laws, [Tex. Transp. Code Ann.] § 543.001, although it
permits police to issue citations in lieu of arrest.” Id. at
323. The authority to effect such an arrest is lacking from our
§ 19.2-74, the statute at issue in this case. Furthermore,
Atwater only involved the legality of an arrest; it did not
involve any question about a search incident to the arrest.
Lovelace v. Commonwealth, 258 Va. 588, 522 S.E.2d 856
(1999), the other case cited by Moore in support of his
position, came to this Court upon remand from the Supreme Court
of the United States. John David Lovelace had been convicted in
the Circuit Court of Halifax County for possession of marijuana
and possession with intent to distribute cocaine. He appealed,
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alleging that the trial court had erred in denying his motion to
suppress evidence that was seized from him during a search of
his person. The Court of Appeals of Virginia affirmed the
convictions. Lovelace v. Commonwealth, 27 Va. App. 575, 500
S.E.2d 267 (1998). This Court refused Lovelace’s petition for
appeal and his subsequent petition for rehearing. Thereafter,
the Supreme Court of the United States granted Lovelace a writ
of certiorari, vacated the judgment of this Court, and remanded
the case to this Court for further consideration in light of its
decision in Knowles. Lovelace v. Virginia, 526 U.S. 1108
(1999).
The Lovelace case implicated Code § 19.2-74(A)(2), which
provides that “[w]henever any person is detained by . . . an
arresting officer for a violation . . . of any provision of this
Code, punishable as a Class 3 or Class 4 misdemeanor or any
other misdemeanor for which he cannot receive a jail sentence,
. . . the arresting officer shall take the name and address of
such person and issue a summons . . . [and] shall forthwith
release him from custody.”
About ten o’clock at night, two deputy sheriffs observed
Lovelace and several other men standing with open bottles of
beer in their hands on the parking lot of a store in an area
described as an “ ‘open air drug market.’ ” Lovelace had a
green bottle up to his mouth and appeared to be drinking from
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it. The men were ordered to lie face down on the ground after
the deputies saw a bottle fly through the air and strike a car
but could not see who threw it, although it came from the area
where Lovelace had been standing. 258 Va. at 591, 522 S.E.2d at
857.
One of the deputies, Mike Womack, then approached Lovelace,
who was lying on the ground as directed, and asked Lovelace his
name. Lovelace identified himself but remained silent when
asked whether he had any guns or drugs. Womack then performed a
“patdown” of Lovelace and felt something like a bag in his
pocket. The deputy did not know if it was a plastic bag or what
but he felt some lumps and something “squooshy,” and he reached
into Lovelace’s pocket and retrieved the bag. The officer then
arrested Lovelace and charged him with possession of marijuana
and possession with intent to distribute cocaine, but not with
any alcohol-related offense. The substance in the bag was later
tested and identified as crack cocaine. The test also
identified some marijuana. Id. at 591-92, 522 S.E.2d at 857.
The Commonwealth argued in Lovelace that the officers had
probable cause to arrest Lovelace for drinking an alcoholic
beverage in public and thus could conduct a search incident to
arrest. We disagreed, based on Knowles, and stated as follows:
The encounter between Lovelace and the officers, while not
involving a traffic offense, was nonetheless similar in
nature and duration to a routine traffic stop. We reach
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this conclusion primarily because the initial reason for
detaining Lovelace was his alleged commission of a Class 4
misdemeanor for which the issuance of a summons was
authorized under Code § 19.2-74(A)(2). Only if Lovelace
had failed or refused to discontinue the unlawful act could
the officer have effected a custodial arrest and taken the
defendant before a magistrate. Code § 19.2-74(A)(2).
However, there is no evidence in the record that Lovelace
acted in such a manner. The fact that the officers could
have issued only a summons for the alcohol-related offense
also negates the Commonwealth’s argument that the existence
of probable cause to charge Lovelace with drinking an
alcoholic beverage in public allowed Womack to search him.
After Knowles, 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.
Id. at 596, 522 S.E.2d at 860 (emphasis added). We concluded
that “the search of Lovelace was not consistent with the Fourth
Amendment,” and we reversed and dismissed both of Lovelace’s
convictions. Id. at 597, 522 S.E.2d at 860.
The Commonwealth distinguishes Lovelace by saying that the
police officer detained Lovelace to issue a citation and did not
arrest him, give him the Miranda warnings, or inform him he was
under arrest while, in Moore’s case, he was placed under arrest
and thus the officers “did not exceed their authority when they
conducted the search” of Moore.
This is a distinction that makes no difference. While
Lovelace was not actually arrested until after Officer Womack
retrieved the “squooshy” bag from his pocket, Womack insisted in
his testimony that, initially, he was “detaining the defendant
because of the open containers of beer, the bottle-throwing
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incident, and the odor of alcohol that he noticed when speaking
with Lovelace,” id. at 592, 522 S.E.2d at 857, facts indicative
of the Class 4 misdemeanor of drinking in public. Code § 4.1-
308. It was the type of offense for which Womack was detaining
Lawrence that triggered the operation of Code § 19.2-74 and
permitted Womack to issue only a summons to Lovelace since none
of the statute’s exceptions were present. Because Womack was
authorized to issue only a summons for the alcohol-related
offense, he could not lawfully conduct a full field-type search
incident to an arrest. Lovelace, 258 Va. at 596, 522 S.E.2d at
860.
The same conclusion applies to the case at bar. Our
statement in Lovelace could have equally been written using
Moore and his charged offense: “The fact that the officers
could have issued only a summons for the [driving on suspended
license] offense also negates the Commonwealth’s argument that
the existence of probable cause to charge [Moore] with [driving
on suspended license] allowed [the officer] to search him.” Id.
The officers were authorized to issue only a summons to
Moore for the offense of operating a vehicle on a suspended
license since none of the exceptions in Code § 19.2-74 were
present. Thus, under the holding in Knowles, the officers could
not lawfully conduct a full field-type search. We find Knowles
and Lovelace controlling and hold that the search of Moore was
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not consistent with the Fourth Amendment. Accordingly, we will
reverse the judgment of the Court of Appeals and dismiss the
indictment against Moore.
Reversed and dismissed.
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