Lovelace v. Commonwealth

Present: All the Justices

JOHN DAVID LOVELACE

v. Record No. 981447 OPINION BY JUSTICE CYNTHIA D. KINSER
November 5, 1999
COMMONWEALTH OF VIRGINIA

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

John David Lovelace was convicted of possession of

marijuana and possession with the intent to distribute

cocaine in the Circuit Court of Halifax County. He

appealed, alleging that the circuit court erred in denying

his motion to suppress evidence that was seized from him

during a search of his person. 1 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 v. Iowa, 525 U.S. 113,

119 S.Ct. 484 (1998). Lovelace v. Virginia, ___ U.S. ___,

119 S.Ct. 1751 (1999). Because we conclude that the search

1
Lovelace also claimed the evidence was insufficient
to prove he intended to distribute cocaine. That issue is
not before us.
of Lovelace violated his Fourth Amendment rights, we will

reverse his convictions.

FACTS

Deputy Sheriff Shawn Sweeney was on patrol in the Cody

area of Halifax County about 10:00 p.m. on August 23, 1996.

Sweeney, along with Deputy Sheriff Mike Womack and some

other police officers, were conducting a “jump-out”

operation. At that time, Sweeney observed the defendant

standing on the premises of a car wash/convenience store

(the store). Womack had previously observed drug

trafficking at that location. He described the area as an

“open air drug market.”

As Sweeney arrived at the store and got out of his

vehicle, he saw Lovelace holding a green glass bottle

containing what Sweeney assumed was an alcoholic beverage.

According to Sweeney, Lovelace “had the bottle up to his

mouth and appeared to be drinking from it.” Sweeney told

Lovelace to drop the bottle and lie face down on the

ground. When Lovelace dropped the bottle, it broke and the

pieces were not recovered from the scene.

According to Womack, the defendant was standing at the

store “among a couple of guys” with open bottles of beer.

Womack testified that the defendant and the other two or

three people standing in the store’s parking lot were

2
ordered to lie face down on the ground after the officers

saw a bottle fly through the air and hit a car. 2 Although

Womack did not see who threw the bottle, he stated that it

came from the area where Lovelace was standing.

Womack then approached Lovelace, who was lying on the

ground as directed, and asked the defendant his name.

Lovelace responded by identifying himself, but remained

silent when Womack questioned whether he had any drugs or

guns. When Lovelace did not respond to Womack’s

questioning regarding drugs or guns, Womack performed a

“patdown” of the defendant. During the “patdown,” Womack

felt something like a bag in Lovelace’s pocket. Womack

admitted that he did not know “if it was a plastic bag or

what at that time,” but said he felt some lumps and

something that was “squooshy.” It was a kind of bag with

which he was familiar, and based on his experience, he knew

that people sometimes carry drugs in that type of bag.

Although Womack admitted that the object in Lovelace’s

pocket did not feel like a gun, that he did not know what

was in the bag, and that he did not have a search warrant,

Womack nevertheless reached into the defendant’s pocket and

retrieved the bag. The substance in the bag was later

2
Womack later testified that the bottle hit the car as
he was putting Lovelace “down on the ground.”

3
identified through laboratory testing as crack cocaine.

The analysis also identified some marijuana. 3

During the search, Lovelace continued to lie on the

ground and did not make any threatening gestures toward the

officers. Womack acknowledged that he had not arrested

Lovelace and did not have him in custody when he searched

Lovelace. Rather, Womack insisted that he was detaining

the defendant because of the open containers of beer, the

bottle-throwing incident, and the odor of alcohol that he

noticed when speaking with Lovelace. However, Womack

admitted that he could not determine whether the odor of

alcohol was coming from the defendant.

Womack did not actually arrest Lovelace until after he

retrieved the bag from the defendant’s pocket. Lovelace

was then arrested for possession of marijuana and

possession with intent to distribute cocaine, but was not

charged with any alcohol-related offense. 4 In fact, no one

3
It is not apparent from the record whether the
marijuana was in the bag with the cocaine or was discovered
elsewhere on Lovelace’s person.
While searching Lovelace, Womack also found $121.00
in a black pouch and $171.30 in the defendant’s pocket.
4
Womack’s testimony was unclear with regard to what
charges he placed against Lovelace at the scene. However,
a magistrate issued warrants for possession with intent to
distribute cocaine and possession of marijuana during the
early morning hours on August 24, 1996. A grand jury
subsequently indicted Lovelace for possession with intent

4
else standing on the premises of the store with Lovelace

was charged with any violation of law despite the open

bottles of beer that Womack observed. The other

individuals were all released after being identified.

ANALYSIS

Pursuant to the remand order issued by the Supreme

Court of the United States, we must consider the

constitutionality of the search of Lovelace’s person in

light of the Supreme Court’s decision in Knowles.

Accordingly, we will discuss that decision before

addressing the arguments presented by the parties in this

case.

Knowles involved an Iowa statute providing that the

issuance of a citation in lieu of an arrest “does not

affect the officer’s authority to conduct an otherwise

lawful search.” Iowa Code Ann. § 805.1(4) (West Supp.

1997). Pursuant to that statute, an Iowa police officer,

who had stopped Knowles for speeding, searched Knowles’ car

after issuing Knowles a citation in lieu of arresting him.

During the search, the officer found a bag containing

marijuana and a “pot pipe” under the driver’s seat. The

______________________
to distribute cocaine. After Lovelace was found guilty of
the marijuana charge in the Halifax County General District
Court, he appealed, and both charges were tried together in
circuit court.

5
officer subsequently arrested Knowles for violating Iowa

laws dealing with controlled substances. Knowles, 525 U.S.

at ___, 119 S.Ct. at 486. The Iowa Supreme Court upheld

the constitutionality of the search, but the Supreme Court

reversed that holding. Id. at ___, 119 S.Ct. at 487.

In Knowles’ challenge to the Iowa statute as applied

to him, the Supreme Court framed the question presented as

“whether such a procedure authorizes the officer,

consistent[] with the Fourth Amendment, to conduct a full

search of the car.” 525 U.S. at ___, 119 S.Ct. at 486.

The Court answered that question “no” because neither of

the two historical rationales for the “search incident to

arrest” exception, i.e., “(1) the need to disarm the

suspect in order to take him into custody, and (2) the need

to preserve evidence for later use at trial,” was

sufficient to justify the officer’s search of Knowles’ car.

Id. at ___, 119 S.Ct. at 487. Based on the facts in

Knowles, the Court concluded that the threat to the

officer’s safety was not as great as the threat inherent in

the context of a custodial arrest. Id. at ___, 119 S.Ct.

at 487. It also determined that Iowa had not shown a need

to preserve or discover evidence because no further

evidence of excessive speed existed once Knowles was

6
stopped for speeding and issued a citation. Id. at ___,

119 S.Ct. at 488.

Although asked to do so, the Court refused to extend

the “bright-line rule” established in United States v.

Robinson, 414 U.S. 218 (1973), to a “search incident to

citation.” Knowles, 525 U.S. ___, 119 S.Ct. at 488. The

“bright-line rule” allows a police officer to conduct a

full field-type search of the person incident to a lawful

custodial arrest. Robinson, 414 U.S. at 235. The Court in

Robinson determined that such a search is permitted as “an

exception to the warrant requirement of the Fourth

Amendment,” and is “also a ‘reasonable’ search under that

Amendment.” Id. In so holding, the Court stated that

[t]he authority to search the person incident to a
lawful custodial arrest, while based upon the need to
disarm and to discover evidence, does not depend on
what a court may later decide was the probability in a
particular arrest situation that weapons or evidence
would in fact be found upon the person of the suspect.

Id. In New York v. Belton, 453 U.S. 454 (1981), the

Supreme Court extended the “bright-line rule” to a search

of the passenger compartment of an automobile when such a

search is conducted as “a contemporaneous incident” of a

lawful custodial arrest of an occupant of the automobile.

Id. at 460. See Glasco v. Commonwealth, 257 Va. 433, 513

S.E.2d 139 (1999).

7
 In declining to extend the “bright-line rule” to a

“search incident to citation,” the Court in Knowles

compared a routine traffic stop to a “Terry stop” because

such a traffic stop is a “relatively brief encounter,”

unlike the extended exposure attending an actual custodial

arrest. Knowles, 525 U.S. at ___, 119 S.Ct. at 488.

However, the Supreme Court recognized that the concern for

officer safety is not absent in a routine traffic stop and

may justify some additional intrusion. However, by itself,

it does not warrant the greater intrusion accompanying “a

full field-type search.” Id. at ___, 119 S.Ct. at 488.

Summarizing, we have no doubt, based on Knowles, that

the Robinson “bright-line rule” does not apply to an

encounter similar to a routine traffic stop in which a

police officer issues only a citation or summons. Because

the nature and duration of such an encounter are

significantly different and less threatening than in the

case of an officer effecting a custodial arrest, the

rationales justifying a full field-type search are not

sufficient to authorize such a search incident to the

issuance of a citation. When a police officer issues a

citation or summons in lieu of a custodial arrest, the

officer can nevertheless impose some further intrusions,

consistent with the Fourth Amendment, if either historical

8
rationale for the “search incident to arrest” exception is

present. We believe that the scope of these further

intrusions is limited to what is necessary to answer the

concerns raised by the presence of either historical

rationale. In other words, an encounter between a police

officer and an individual that is similar to a routine

traffic stop and results in the issuance of a citation or

summons may involve some degree of danger to the officer or

some need to preserve or discover evidence sufficient to

warrant an additional intrusion, but it will not

necessarily justify a full field-type search.

Having analyzed Knowles, we now turn to the parties’

arguments. Lovelace contends that the search of his person

violated the Fourth Amendment because he was not subject to

a custodial arrest. He asserts that, if he had been

charged with drinking an alcoholic beverage in public in

violation of Code § 4.1-308, the officer could have issued

only a summons pursuant to Code § 19.2-74(A)(2). 5

Continuing, Lovelace argues that neither a concern for

5
Code § 19.2-74(A)(2) 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.”

9
officer safety nor a need to preserve or discover evidence

existed during his encounter with Sweeney and Womack.

Thus, he contends that Womack had no basis upon which to

justify the extensive search that he conducted.

The Commonwealth, however, contends 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. It is the Commonwealth’s

position that the presence of probable cause for an arrest,

rather than an actual custodial arrest, determines the

reasonableness of a search. While conceding that Code

§ 19.2-74(A)(2) generally requires that a suspect be

released from custody when charged with a Class 4

misdemeanor, the Commonwealth asserts that a full search

incident to arrest is nonetheless justified in that

situation because “[a]n officer . . . does not know upon

making the arrest whether he will, in fact, be releasing

the individual or formally taking him into custody.”

With regard to the effect of the decision in Knowles,

the Commonwealth first argues that Knowles is inapplicable

because Lovelace was, in fact, in custody when Womack

searched him. The Commonwealth premises this argument on

the language of Code § 19.2-74(A)(2) providing that an

individual is released “from custody” after the officer

10
takes the name and address of the person and issues a

summons.

In the alternative, the Commonwealth argues that, if

Knowles applies to the instant case, both of the historical

rationales for a “search incident to arrest” were present.

The Commonwealth states that officer safety was a concern

because the encounter with Lovelace occurred in an “open

air drug market,” there were several people assembled on

the parking lot of the store, and a bottle had been thrown

by someone. The Commonwealth also posits that Womack

needed to discover evidence, such as cash register receipts

to establish a recent purchase of alcoholic beverages by

Lovelace since the bottle he had been holding could not be

recovered from the scene. Having conceded at oral argument

that it must demonstrate that Womack had a right to conduct

a full search incident to arrest in order to prevail in

this appeal, the Commonwealth further contends that

whenever either of the historical rationales for search

incident to arrest is present, an officer can conduct a

full field-type search even though only a citation or

summons is issued. We do not agree with any of the

Commonwealth’s arguments.

Initially, we conclude that Knowles is applicable.

The encounter between Lovelace and the officers, while not

11
involving a traffic offense, was nonetheless similar in

nature and duration to a routine traffic stop. We reach

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.

Nor do we believe that Code § 19.2-74(A)(2)

contemplates a custodial situation equivalent to an actual

custodial arrest. Under that statute, a suspect is

detained, or in the custody of the police officer, only

long enough for the officer to take down the name and

12
address of the person and issue a summons. One of the

reasons that the Knowles Court did not extend the Robinson

“bright-line rule” to a “search incident to citation” was

because the duration of the encounter between a police

officer and a defendant is “relatively brief” when the

officer issues a citation. Thus, the threat to officer

safety is less.

Next, assuming without deciding that there was a need

to discover evidence or a threat to the officers’ safety,

we conclude that the extent of Womack’s search exceeded the

scope necessary to accomplish either of those objectives.

Once Womack conducted his “patdown” of Lovelace and felt

nothing similar to a weapon, any reasonable concern for

officer safety was resolved. Likewise, Womack did not

testify that he felt something that was evidence related to

Lovelace’s drinking an alcoholic beverage in public.

Instead, he felt a “squooshy” bag. In other words, Womack

did not “reasonably believe” that the bag was either a

weapon or evidence related to Lovelace’s alleged alcohol

offense. Lansdown v. Commonwealth, 226 Va. 204, 213, 308

S.E.2d 106, 112 (1983), cert. denied, 465 U.S. 1104 (1984).

Thus, Womack’s subsequent reach into Lovelace’s pocket to

retrieve the “squooshy” bag was not in furtherance of

either officer safety or the preservation of evidence.

13
Once Womack satisfied himself that Lovelace did not have a

weapon or evidence of an alcohol offense on his person, the

officer had no basis to continue his search. See Harris v.

Commonwealth, 241 Va. 146, 152, 400 S.E.2d 191, 195 (1991)

(Terry “patdown” must cease once officer determines that

individual does not possess weapon).

Based on the Supreme Court’s decision in Knowles, we

therefore conclude that the search of Lovelace was not

consistent with the Fourth Amendment. Accordingly, the

Court of Appeals erred in upholding the circuit court’s

denial of Lovelace’s motion to suppress the evidence

obtained during the search. For these reasons, we will

reverse the judgment of the Court of Appeals, dismiss the

indictment charging Lovelace with possession with intent to

distribute cocaine, and dismiss the warrant charging

Lovelace with possession of marijuana. 6

Reversed and dismissed.

6
In Rhodes v. Commonwealth, 29 Va. App. 641, 513
S.E.2d 904 (1999), the Court of Appeals found a “search
incident to citation” unreasonable under the Fourth
Amendment, based on the decision in Knowles. Although the
decision in Rhodes was handed down before the Supreme Court
of the United States remanded the instant case to this
Court, the Court of Appeals acknowledged that, to the
extent that its prior decision in Lovelace is inconsistent
with the decision in Knowles, “Lovelace is no longer a
viable precedent.” Rhodes, 29 Va. App. at 643 n.1, 513
S.E.2d at 905. While that acknowledgement is correct in

14
______________________
light of our decision today, it does not afford any relief
to Lovelace.

15