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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