Present: Chief Judge Fitzpatrick, Judges Benton, Elder, Bumgardner, Frank, Humphreys,
Clements, Felton, Kelsey, McClanahan and Haley
Argued at Richmond, Virginia
DAVID LEE MOORE
OPINION BY
v. Record No. 2648-03-1 JUDGE ROBERT J. HUMPHREYS
NOVEMBER 22, 2005
COMMONWEALTH OF VIRGINIA
UPON REHEARING EN BANC
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Mark S. Davis, Judge
S. Jane Chittom, Appellate Defender (Virginia Indigent Defense
Commission, on brief), for appellant.
Susan L. Parrish, Assistant Attorney General (Judith Williams
Jagdmann, Attorney General, on brief), for appellee.
This matter comes before the Court on rehearing en banc from a divided panel opinion
issued February 22, 2005. David Lee Moore ("Moore") argues on appeal that his conviction for
possession of cocaine with intent to distribute should be reversed because the trial court erred in
denying his motion to suppress. Moore reasons that, because his underlying arrest for driving on
a suspended license violated both Code 19.2-74(A)(1) and the Fourth Amendment to the
United States Constitution, the evidence uncovered during the search incident to that arrest must
be suppressed. For the reasons that follow, we affirm his conviction.
I. Background
On appeal, we review the evidence, and all reasonable inferences deducible therefrom, in
the light most favorable to the Commonwealth, the prevailing party below. Garcia v.
Commonwealth, 40 Va. App. 184, 189, 578 S.E.2d 97, 99 (2003). So viewed, the evidence
establishes the following.
On February 20, 2003, Detective B.J. Karpowski overheard a conversation on his police
radio between Officers McAndrew and Anthony. The officers were discussing the fact that a
man nicknamed "Chubs" was driving a car in the area. Drawing on his knowledge that a man
nicknamed "Chubs" had just been released from a federal penitentiary and was driving on a
suspended license, Karpowski radioed the other officers and told them to stop the vehicle driven
by "Chubs."
Officers Anthony and McAndrew responded to Karpowski's radio message and stopped
Moore, whom Officer Anthony knew was nicknamed "Chubs." Although Moore was not the
man Detective Karpowski referred to in his radio message, Officer Anthony determined that
Moore was, in fact, driving on a suspended license.
After confirming that Moore's license was suspended, Officer Anthony arrested Moore,
handcuffed him, and advised him of his Miranda rights. Officer Anthony then asked Moore if he
understood his rights, and Moore acknowledged that he did. Officer Anthony also asked Moore
where he was staying and if he had any narcotics on his person. Moore voluntarily told Officer
Anthony that he was staying in an Econo-Lodge in Chesapeake. Moore was then taken to
Officer McAndrew's vehicle, where Moore signed a waiver of consent allowing the officers to
search his hotel room. Moore was then placed in Officer McAndrew's police car. However,
due to a miscommunication, neither officer conducted a search incident to arrest at that time. In
fact, Officer McAndrew was "under the impression that [Moore] had been searched prior to
placing him in my police vehicle."
Once Moore was placed in the police car, the officers called animal control to pick up a
dog that was riding in Moore's vehicle. After animal control arrived forty-five minutes later,
the officers drove to the hotel room where Moore had been staying. There, Officer McAndrew
realized Moore had not been searched. The officers made a protective sweep of the hotel room,
and Officer McAndrew then conducted a search of Moore incident to arrest. He recovered crack
cocaine from Moore's jacket and $516 in cash from his pants pocket. Moore was then taken
back to the City of Portsmouth.
Moore moved to suppress the evidence recovered from his person on statutory and
constitutional grounds, arguing the search of his person was tainted by the illegal arrest that
preceded it. Specifically, Moore argued the arrest was illegal because the detectives failed to
release him on a summons pursuant to Code 19.2-74(A)(1).
When asked at the suppression hearing why Moore was arrested, Officer Anthony stated,
"just our prerogative, we chose to effect an arrest." Additionally, after the traffic stop, "narcotics
were eventually recovered." When asked why Moore was not released on a summons, Anthony
replied, "Well, we were still in the middle of an investigation; the investigation was not complete
yet. We were, pursuant to the traffic stop, . . . also conducting a narcotics investigation."
The trial court denied the motion to suppress, holding that the arrest neither violated the
Fourth Amendment nor Virginia law permitting an officer to arrest for a misdemeanor
committed in his presence. After hearing additional evidence, the trial court convicted Moore of
possession of cocaine with intent to distribute, and sentenced him to five years in prison, with
one year and six months suspended.
On appeal, a divided panel of this Court reversed the judgment of the trial court. See
Moore v. Commonwealth, 45 Va. App. 146, 609 S.E.2d 74 (2005). We granted the
Commonwealth's petition for en banc review, stayed the mandate of the panel decision, and
reinstated the appeal. Upon rehearing en banc, we affirm the judgment of the trial court and
reinstate Moore's conviction.
II. Analysis
On appeal, "[t]his Court is 'bound by the trial court's findings of historical fact unless
"plainly wrong" or without evidence to support them and we give due weight to the inferences
drawn from those facts by resident judges and local law enforcement officers.'" Davis v.
Commonwealth, 37 Va. App. 421, 429, 559 S.E.2d 374, 378 (2002) (quoting Neal v.
Commonwealth, 27 Va. App. 233, 237, 498 S.E.2d 422, 424 (1998)). However, "whether a
defendant is seized in violation of the Fourth Amendment is a question that is reviewed de novo
on appeal." Id.
Moore argues on appeal that, because the initial arrest was unauthorized by Code
19.2-74, it was also in violation of his Fourth Amendment rights. As such, Moore contends the
fruits of the subsequent search, specifically, the cocaine recovered from his person, must be
suppressed. In response, the Commonwealth argues that Moore's arrest did not violate Code
19.2-74. The Commonwealth reasons that, because Moore was the only one driving the car,
and because he did not have a valid driver's license, Moore ultimately would "fail to discontinue
the unlawful act." The Commonwealth further contends that, even if the arrest was invalid, it
nonetheless was constitutional and does not trigger the application of the Fourth Amendment
exclusionary rule.
For the reasons that follow, we hold that, although the arrest violated the express
provisions of Code 19.2-74, the arrest and resulting search did not violate Moore's
constitutional-as opposed to statutory-rights. And, because Code 19.2-74 does not provide
an exclusionary remedy, we must affirm the trial court's denial of Moore's motion to suppress.
A. The Application of Code 19.2-74
Code 19.2-74 provides, in pertinent part, that
Whenever any person is detained by or is in the custody of an
arresting officer for any violation committed in such officer's
presence which offense is a violation of any county, city or town
ordinance or of any provision of this Code punishable as a Class 1
or Class 2 misdemeanor or any other misdemeanor for which he
may receive a jail sentence . . . the arresting officer shall take the
name and address of such person and issue a summons or
otherwise notify him in writing to appear at a time and place to be
specified in such summons or notice. Upon the giving by such
person of his written promise to appear at such time and place, the
officer shall forthwith release him from custody.
Code 19.2-74(A)(1) (emphasis added). The statute also sets forth several exceptions to this
general rule, providing that an officer may effectuate a warrantless arrest, pursuant to Code
19.2-82, if: (1) "any such person shall fail or refuse to discontinue the unlawful act," or (2) "if
any person is believed by the arresting officer to be likely to disregard a summons . . . or . . . to
be likely to cause harm to himself or to any other person . . . ." Code 19.2-74(A)(1).
Accordingly, Code 19.2-74, in conjunction with Code 19.2-82, permits an officer to
conduct a warrantless custodial arrest in two types of circumstances. First, an arrest is proper if
the person fails or refuses to discontinue the unlawful act or refuses to give a written promise to
appear. Id. Second, an arrest is also proper if the officer reasonably believes the person will
likely disregard the summons or will likely do harm to himself or to others. Id.
In the first instance, the ability to arrest is based upon the offender's actual conduct, not
potential future conduct. Thus, according to Lovelace v. Commonwealth, 258 Va. 588, 522
S.E.2d 856 (1999), only if Moore had "failed or refused to discontinue the unlawful act could the
officers have effected a custodial arrest and taken the defendant before a magistrate." Id. at 596,
522 S.E.2d at 860. In this case, Moore complied with all of the officers' requests, including
discontinuing the unlawful conduct when he stopped his vehicle. There is no evidence showing
Moore failed or refused to discontinue the unlawful act. Moreover, Moore did not refuse to give
a written promise to appear, as a summons was never issued.
In the second instance, an arrest may be based on a "reasonable belief" about the
offender's future conduct. However, "although the statute refers to predictive estimation of the
accused person's future conduct, the standard for determining satisfaction of the statute is
objective, whether evidence supports a reasonable belief that the statutory circumstances obtain."
Fox v. Commonwealth, 43 Va. App. 446, 450, 598 S.E.2d 770, 771 (2004). In this case, there is
no evidence that Moore would disregard the summons or would be likely to cause harm to
himself or to others. Moore did not argue with the officers, nor did they have any reason from
past experience to believe that he would not comply with the summons. Cf. Smith v.
Commonwealth, 30 Va. App 737, 742-43, 519 S.E.2d 831, 833 (1999) (holding officers could
arrest the defendant for breach of the peace when she used profane language and kicked the
officers while they attempted to obtain information about her identity).
Because the record is devoid of 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, we hold that the arrest violated the express
provisions of Code 19.2-74.
B. The Application of the Fourth Amendment to the Search
Moore also argues that, because the arrest violated Code 19.2-74, the arrest and
subsequent search also violated his Fourth Amendment rights. For the reasons that follow, we
find that neither the arrest nor the search violated Moore's constitutional rights.
1. The Constitutional Validity of the Arrest.
In Atwater v. City of Lago Vista, 532 U.S. 318 (2001), the United States Supreme Court
held that, when "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. "[T]he standard of probable cause 'applies to all arrests, without
the need to "balance" the interests and circumstances involved in particular situations.'" Id.
(quoting Dunaway v. New York, 442 U.S. 200, 208 (1979)).
Here, the officers had probable cause to arrest Moore for committing a misdemeanor in
their presence. Specifically, Officers Anthony and McAndrew detained Moore because they had
reason to believe, based on radio information received from a fellow officer, that Moore was
driving on a suspended license. Although the record indicates that the officers were mistaken
about the identity of the "Chubs" referred to by Detective Karpowski, the Supreme Court has
held that "when the police have probable cause to arrest one party, and when they reasonably
mistake a second party for the first party, then the arrest of the second party is a valid arrest."
Hill v. California, 401 U.S. 797, 802 (1971). Because the officers observed Moore, a.k.a.
"Chubs," driving his vehicle on what they had reason to believe was a suspended license, the
officers had probable cause to believe that Moore was committing a crime in their presence.
And, because the officers had probable cause that Moore committed a criminal offense, his arrest
did not violate the Fourth Amendment. See Atwater, 532 U.S. at 354.
Moore argues, however, that Atwater does not apply in this case, claiming Atwater dealt
with a Texas statute specifically authorizing an arrest for violation of that statute. Moore cites
West v. Commonwealth, 36 Va. App. 237, 549 S.E.2d 605 (2001), to support this contention.
However, West is distinguishable because the search at issue in that case took place when the
defendant was in the process of being released on a summons and thus was no longer under
arrest such as would justify a search incident to arrest. Crucial to our analysis is the fact that the
Supreme Court's holding in Atwater-that an arrest based on probable cause does not violate the
Constitution-was not contingent upon the construction of the particular Texas statute. In fact,
"[h]ad the court intended to condition the constitutionality of an arrest on state law, it had ample
opportunity to say so . . . ." People v. McKay, 41 P.3d 59, 68 (Cal. 2002). Moreover, the
"'Supreme Court has never taken the position that an arrest made on probable cause violates the
Fourth Amendment merely because a taking of [a suspect into] custody was deemed unnecessary
(as a matter of state law or otherwise).'" Id. at 66 n.4 (quoting 1 LaFave, Search and Seizure
1.5(b), p. 141 (3d ed. 1996)) (emphasis in original).
Moore also contends the officers did not have probable cause to arrest him "because there
can be no probable cause to arrest where arrest is contrary to the controlling statute." For the
reasons identified above, the issue of probable cause is determined separate and apart from
whether an arrest violates a state statute. Accordingly, because the officers had probable cause
to arrest Moore for committing a misdemeanor in their presence, the arrest-although
unauthorized by Code 19.2-74-did not violate the Fourth Amendment.
2. The Constitutional Validity of the Search.
In United States v. Robinson, 414 U.S. 218 (1973), the United States Supreme Court held
that a search incident to an arrest that is based upon probable cause complies with the Fourth
Amendment and, thus, "requires no additional justification." Id. at 235. As noted by the
Robinson Court,
[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. A
custodial arrest of a suspect based on probable cause is a
reasonable intrusion under the Fourth Amendment; that intrusion
being lawful, a search incident to the arrest requires no additional
justification. It is the fact of the lawful arrest which establishes the
authority to search, and . . . in the case of a lawful custodial arrest a
full search of the person is not only an exception to the warrant
requirement of the Fourth Amendment, but is also a "reasonable"
search under that Amendment.
Id.; see also New York v. Belton, 453 U.S. 454, 461 (1981). Because, as discussed above,
Moore's arrest was based upon probable cause, the search incident to that arrest did not violate
the Fourth Amendment. Moore argues, however, that, because the initial arrest was "unlawful,"
Robinson does not apply. Moore reasons that the Virginia Supreme Court's decision in Lovelace
mandates a finding that the search subsequent to the arrest violated his Fourth Amendment
rights. We disagree.
In Lovelace, a police officer detained the defendant for a misdemeanor and searched him.
The officer "did not actually arrest [the defendant] until after he retrieved the [drugs] from the
defendant's pocket." Lovelace, 258 Va. at 592, 522 S.E.2d at 857. Applying Code 19.2-74
and the Knowles holding-specifically, that a search conducted incident to a citation violates the
Fourth Amendment-the Supreme Court of Virginia held 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.
Moore's reliance upon Lovelace, however, is without merit. Although Lovelace may, at
first glance, seem to be dispositive of the issue before this Court, further analysis indicates
otherwise. In determining that the search was a violation of the defendant's Fourth Amendment
rights, the Supreme Court of Virginia held that the citation requirement negated the
Commonwealth's argument that probable cause to arrest justified the search. Id. at 595, 522
S.E.2d at 860. The Lovelace Court stated that the bright-line rule regarding a search incident to
arrest, as set forth in Robinson, did not apply because the detention contemplated in Lovelace
was similar in nature and duration to a traffic stop. In other words, in Lovelace, the officers did
not intend to arrest the defendant at the onset of the encounter. Rather, the detention was similar
to a stop and frisk, and the defendant was arrested only after an illegal pat down revealed a bag
of crack cocaine. The officer admitted that he retrieved the bag from the defendant's pocket
even though "the object . . . did not feel like a gun, he did not know what was in the bag, and []
he did not have a search warrant." Id. at 591, 522 S.E.2d at 857.
In contrast, the facts of this case indicate the officers intended to effect a custodial arrest
from the time they detained Moore. They placed him under arrest, read him his Miranda rights,
and obtained a written consent to search his hotel, all within fifteen minutes of the initial stop.
Thus, Lovelace is not controlling, and the bright-line rule announced in Robinson applies. That
is, because the arrest was based on probable cause, and because the search was conducted
incidental to that arrest, the search did not violate the Fourth Amendment.
C. The Application of the Exclusionary Rule.
Lastly, Moore argues that exclusion of the evidence should be the remedy for the cocaine
seized during the search subsequent to the unlawful arrest. The Commonwealth argues that the
exclusion of evidence is not a proper remedy unless the statute so provides. For the reasons that
follow, we hold that, even though the arrest violated Code 19.2-74, the exclusionary rule does
not apply.
As we stated in Troncoso v. Commonwealth, 12 Va. App. 942, 407 S.E.2d 349 (1991),
"[h]istorically, searches or seizures made contrary to provisions contained in Virginia statutes
provide no right of suppression unless the statute supplies that right." Id. at 944, 407 S.E.2d at
350 (citing Commonwealth v. Brown, 8 Va. App. 41, 44, 378 S.E.2d 623, 624 (1989) (Baker, J.,
concurring)); see also Horne v. Commonwealth, 230 Va. 512, 518-19, 339 S.E.2d 186, 191
(1986); Hart v. Commonwealth, 221 Va. 283, 287 n.*, 269 S.E.2d 806, 809 n.* (1980). The
Supreme Court of Virginia "has steadfastly refused to extend [the rule set forth in Weeks v.
United States, 232 U.S. 383 (1914),] to encompass evidence seized pursuant to statutory
violations, absent an express statutory provision for suppression. Troncoso, 12 Va. App. at
944, 407 S.E.2d at 350; see also Hall v. Commonwealth, 138 Va. 727, 733-34, 121 S.E. 154, 156
(1924); Thompson v. Commonwealth, 10 Va. App. 117, 122, 390 S.E.2d 198, 201 (1990).
In the present case, the arrest did not violate Moore's Fourth Amendment rights, which
would have triggered the exclusionary rule. Rather, the arrest violated a state statute that does
not provide for the exclusion of evidence retrieved from a search subsequent to that arrest.
Because the statute does not provide the exclusionary remedy, we may not supply one judicially.
Accordingly, we hold that no exclusionary rule applies, and, thus, the trial court did not err in
denying Moore's motion to suppress.
III. Conclusion
For the foregoing reasons, we uphold the trial court's denial of the motion to suppress
and affirm Moore's conviction for possession of cocaine with intent to distribute.
Affirmed.
Elder, J., joined by Fitzpatrick, C.J., Benton and Frank, JJ., concurring, in part, and dissenting,
in part.
I join in the majority's recitation of the facts and its conclusion in Part II.A. that David
Lee Moore's arrest violated the express provisions of Code 19.2-74. However, I disagree with
the majority's conclusion that this statutory violation did not rise to a constitutional violation
under the facts of this case. I would hold that the decision in Knowles v. Iowa, 525 U.S. 113,
119 S. Ct. 484, 142 L. Ed. 2d 492 (1998), compels the conclusion that the search incident to the
unlawful custodial arrest was unreasonable under the Fourth Amendment. Thus, I would reverse
and dismiss the indictment, and I respectfully dissent from the judgment.
As the United States Supreme Court explained in Knowles, the Fourth Amendment
places limitations on searches conducted incident to issuance of a citation. In Knowles, an Iowa
police officer stopped Knowles for speeding and, as permitted by statute, exercised his discretion
to issue Knowles a citation rather than arrest him. Id. at 114, 119 S. Ct. at 486. After issuing the
citation, the officer conducted a full search of Knowles's car, found a bag of marijuana and a
"pot pipe" under the driver's seat, and arrested Knowles for offenses related to his possession of
that contraband. Id. The Supreme Court considered whether conducting a full search of
Knowles's vehicle pursuant to the issuance of a traffic citation was consistent with the Fourth
Amendment and concluded that it was not. Id.
According to the Supreme Court, "two historical rationales [exist] for the 'search incident
to arrest' exception [to the Fourth Amendment]: (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." Id. at 116, 119
S. Ct. at 487. It "recognized that '[t]he danger to the police officer flows from the fact of the
arrest, and its attendant proximity, stress, and uncertainty, and not from the grounds for arrest.'"
Id. at 117, 119 S. Ct. at 488 (quoting United States v. Robinson, 414 U.S. 218, 234 n.5, 94 S. Ct.
467, 476 n.5, 38 L. Ed. 2d 427 (1973)). The Court determined in Knowles that neither rationale
was present and refused to extend the "search-incident-to-arrest" exception to permit searches
incident to the issuance of citations. Id. at 118-19, 119 S. Ct. at 488. The Court held that
"officers have other, independent bases to search for weapons and protect themselves from
danger," including the ability to "perform a 'patdown' of [the detainee] upon reasonable
suspicion that [he] may be armed and dangerous." Id. at 117-18, 119 S. Ct. at 488 (citing Terry
v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968)).
The Virginia Supreme Court addressed a similar issue in Lovelace v. Commonwealth,
258 Va. 588, 522 S.E.2d 856 (1999). Lovelace and several other men were drinking beer while
standing in the parking lot of a convenience store known to be an "open air drug market." Id. at
591, 522 S.E.2d at 857. Officers in the area saw a beer bottle fly through the air but did not see
who threw it. Id. One officer testified that the bottle came from the area where Lovelace was
standing. Id. Lovelace and the other men were ordered to lie face down on the ground. Id. An
officer approached Lovelace and asked him his name. Id. Lovelace identified himself but
remained silent when the officer asked him whether he had any drugs or guns. Id. The officer
proceeded to "pat down" Lovelace. Id. In Lovelace's pocket, he felt something like a plastic
bag with lumps in it, but he did not know what was in the bag. Id. at 591-92, 522 S.E.2d at 857.
The officer nevertheless reached in Lovelace's pocket and retrieved the bag. Id. at 592, 522
S.E.2d at 857. The substance was later identified as crack cocaine. Id.
In reversing Lovelace's conviction, the Court said:
Knowles is applicable. . . . [T]he 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 [Deputy] 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
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.
Id. at 596, 522 S.E.2d at 860; see also West v. Commonwealth, 36 Va. App. 237, 549 S.E.2d 605
(2001); Rhodes v. Commonwealth, 29 Va. App. 641, 513 S.E.2d 904 (1999) (en banc).
The United States Supreme Court subsequently revisited Knowles, holding in Atwater v.
City of Lago Vista, 532 U.S 318, 354, 121 S. Ct. 1536, 1557, 149 L. Ed. 2d 549 (2001), that an
officer effecting a custodial arrest for a misdemeanor traffic offense may search the arrestee
without violating the Fourth Amendment. However, we noted in West that the Court in Atwater
reached this conclusion in the context of a state statute that expressly authorized a custodial
arrest in such circumstances and gave the officer the discretion to issue a summons in lieu of
effecting an arrest. West, 36 Va. App. at 242 n.2, 549 S.E.2d at 607 n.2. Because the statute at
issue in Atwater was significantly different from Virginia's, we held in West that the ruling in
Atwater "does not apply in this case." Id. We then applied Knowles to hold unconstitutional the
search of West conducted while he was handcuffed and under arrest for a citation-only offense.
Id. at 240-42, 549 S.E.2d at 606-07. Thus, we concluded in West that the holding in Atwater had
no effect on the holding of Knowles that an officer who conducts a search pursuant to issuance
of a summons violates the Fourth Amendment. See id.
The majority's holding here, in essence, overrules the interpretation of Atwater we made
in West. Of course, the Court sitting en banc has the authority to overrule a panel decision, but I
believe its legal basis for doing so is constitutionally unsound because Atwater did not address
the impact of the Fourth Amendment on a search incident to a custodial arrest for a misdemeanor
offense effected in violation of a state statute authorizing only the issuance of a summons.
Here, rather than searching pursuant to issuance of a summons--a clear violation of the
Fourth Amendment--as in Knowles and West, the detectives effected a full custodial arrest of
Moore and searched him pursuant to that arrest. We all agree that arrest violated Code 19.2-74
but disagree as to the ramifications of that violation. I agree with the majority that, ordinarily, a
statutory violation does not require the suppression of evidence obtained as a result of that
violation "'absent an express statutory provision for suppression.'" Janis v. Commonwealth, 22
Va. App. 646, 651, 472 S.E.2d 649, 652 (quoting Troncoso v. Commonwealth, 12 Va. App. 942,
944, 407 S.E.2d 349, 350 (1991)), aff'd on reh'g en banc, 23 Va. App. 696, 479 S.E.2d 534
(1996). However, in light of the Supreme Court's declaration in Knowles that the Fourth
Amendment does not permit a search incident to issuance of a citation, I would conclude that a
search conducted pursuant to a custodial arrest that violates Code 19.2-74 constitutes, in effect,
a search incident to issuance of a citation in violation of the Fourth Amendment. Knowles holds
that if an officer, exercising his discretion as permitted by statute, chooses only to issue a citation
rather than to effect a full arrest, a search incident to issuance of that citation is unconstitutional.
I see no reason to reach a different result when it is the legislature that has concluded that, absent
additional facts, only a citation should be issued for a particular offense.
Although Knowles did not expressly address this scenario, neither Knowles nor Atwater
precludes this approach, and I would hold that exclusion, under the facts of Moore's case, is a
logical and necessary extension of the decision in Knowles. The Virginia Supreme Court
intimated as much in Lovelace when it observed "The fact that the officers could have issued
only a summons for the alcohol-related offense [under the relevant state statute] also negates the
Commonwealth's argument that the existence of probable cause to charge Lovelace with
drinking an alcoholic beverage in public allowed [Deputy] Womack to search him." 258 Va. at
596, 522 S.E.2d at 860. Where a statute authorizes only the issuance of a citation for certain
minor offenses, pursuant to which a full search would be unconstitutional under Knowles, to
hold admissible the fruits of a search, conducted by an officer who effects a full custodial arrest
under circumstances clearly not permitted by statute, would yield undesirable results and would
be fraught with the potential for abuse. Any officer so desiring could intentionally effect a full
custodial arrest contrary to clearly established state law in order to avoid running afoul of
Knowles, thereby placing the search beyond the reach of the Fourth Amendment's exclusionary
rule. Cf. Crosby v. Commonwealth, 6 Va. App. 193, 200-01 & n.9, 367 S.E.2d 730, 735 & n.9
(1988) (holding existence of probable cause and exigent circumstances may justify warrantless
entry of residence so long as police are "not . . . responsible for creating their own exigencies").
Under appropriate circumstances, the good faith exception to the exclusionary rule
permits the admission of evidence obtained by an officer mistaken about the law. See, e.g.,
United States v. Gould, 326 F.3d 651, 659-60 (5th Cir. 2003). However, the burden rests on the
government to prove good faith. See, e.g., United States v. Brunette, 256 F.3d 14, 17 (1st Cir.
2001). Here, the Commonwealth made no argument that the arresting officers misperceived the
law. Further,
the exception is not devised for the unlawful conduct of all officers
who mean well. The good faith belief must be grounded in
objective reasonableness. The mistake of an operative fact or an
error of technical nature may not bar admission of evidence.
[Circumstances are different where the mistake is] on a basic point
of established law. To extend the exception so far as to allow
evidence of a clearly unlawful warrantless search . . . would put
too great a premium on ignorance of the law and would virtually
terminate the exclusionary rule.
United States v. Whaley, 781 F.2d 417, 421 (5th Cir. 1986) (citations omitted) (emphases
added). When Detectives Anthony and McAndrew encountered Moore on February 20, 2003,
both the relevant provisions of Code 19.2-74 and the Supreme Court's 1998 holding in
Knowles were established law, and the detectives' misapplication of that law was not objectively
reasonable.
Applying these principles to the facts of this case, I would hold the search was
unconstitutional because the Code made clear that, absent additional facts, the detectives were
required to issue Moore a summons for the misdemeanor offense of driving on a suspended
license. See Code 19.2-74; Code 46.2-301 (providing that driving while one's license is
suspended is a Class 1 misdemeanor). Moore's arrest violated Code 19.2-74, and the evidence
obtained as a result of the search, which was, in effect, conducted pursuant to issuance of a
citation, should have been suppressed pursuant to Knowles as fruit of the poisonous tree. See
Wong Sun v. United States, 371 U.S. 471, 485-86, 83 S. Ct. 407, 416, 9 L. Ed. 2d 441 (1963).
For these reasons, I would reverse and dismiss the indictment, and I respectfully dissent.
Tuesday 22nd
March, 2005.
David Lee Moore, Appellant,
against Record No. 2648-03-1
Circuit Court Nos. CR03000585-01 and CR03-0611-01
Commonwealth of Virginia, Appellee.
Upon a Petition for Rehearing En Banc
Before Chief Judge Fitzpatrick, Judges Benton, Elder, Bumgardner, Frank,
Humphreys, Clements, Felton, Kelsey, McClanahan and Haley
On March 8, 2005 came the appellee, by the Attorney General of Virginia, and filed a petition
praying that the Court set aside the judgment rendered herein on February 22, 2005, and grant a
rehearing en banc thereof.
On consideration whereof, the petition for rehearing en banc is granted, the mandate entered
herein on February 22, 2005 is stayed pending the decision of the Court en banc, and the appeal is
reinstated on the docket of this Court.
The parties shall file briefs in compliance with Rule 5A:35. The appellee shall attach as an
addendum to the opening brief upon rehearing en banc a copy of the opinion previously rendered by the
Court in this matter. It is further ordered that the appellee shall file with the clerk of this Court twelve
additional copies of the appendix previously filed in this case.
A Copy, PRIVATE
Teste:
Cynthia L. McCoy, Clerk
By:
Deputy Clerk
COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Fitzpatrick, Judge Elder and Senior Judge Annunziata?
Argued at Chesapeake, Virginia
DAVID LEE MOORE
OPINION BY
v. Record No. 2648-03-1 JUDGE LARRY G. ELDER
FEBRUARY 22, 2005
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF PORTSMOUTH
Mark S. Davis, Judge
S. Jane Chittom, Appellate Defender (Virginia Indigent Defense
Commission, on briefs), for appellant.
Susan L. Parrish, Assistant Attorney General (Jerry W. Kilgore,
Attorney General, on brief), for appellee.
David Lee Moore (appellant) appeals his conviction under Code 18.2-248 for
possession of cocaine with intent to distribute. Appellant argues on appeal that his conviction
should be reversed because the trial court erred in denying his motion to suppress. Appellant's
motion to suppress was based on the failure of police to issue a summons instead of effecting an
arrest, pursuant to Code 19.2-74(A)(1), when they stopped his car and determined he was
driving on a suspended license. For the following reasons, we reverse.
I.
BACKGROUND
On appeal, we review the evidence, and all reasonable inferences that can be drawn from
the evidence, in a light most favorable to the Commonwealth as the party prevailing below.
Garcia v. Commonwealth, 40 Va. App. 184, 189, 578 S.E.2d 97, 99 (2003). So viewed, the
evidence establishes that on February 20, 2003, Detective B.J. Karpowski overheard a
conversation on his police radio about a man, whose nickname was "Chubs," driving a car in the
area. Drawing on his knowledge that a man nicknamed Chubs had just been released from a
federal penitentiary and was driving on a suspended license, Karpowski radioed other officers
and told them to stop Chubs.
Detectives Mark Anthony and T. McAndrew responded to Karpowski's radio message
and stopped appellant, whom Anthony knew was nicknamed "Chubs." Although appellant was
not the man Karpowski referred to in his radio message, the detectives determined that he was
driving on a suspended license.
Appellant was alone in the car with a dog the detectives described as "very upset with
[the detectives' presence]" and "big enough" that the officers "didn't want to get too close to it."
After confirming that appellant's license was suspended, Detectives Anthony and McAndrew
arrested appellant, handcuffed him, and placed him in Detective McAndrew's vehicle. Due to a
miscommunication, the detectives did not search appellant at that time. The detectives then
called animal control and requested that they pick up the dog. Forty-five minutes later, after
animal control arrived, the detectives drove to a hotel room where appellant had been staying.
There, McAndrews searched appellant's person and recovered crack cocaine from his jacket and
$516 in cash from his pants pocket.
When asked at the hearing why appellant was arrested, Detective Anthony stated, "Just
our prerogative, we chose to effect an arrest. Additionally, subsequent to that traffic stop,
narcotics were eventually recovered." When asked why they did not release appellant on a
summons, Anthony replied, "Well, we were still in the middle of the investigation; the
investigation was not complete yet. We were, pursuant to the traffic stop, . . . also conducting a
narcotics investigation."
Appellant moved to suppress on statutory and constitutional grounds, arguing the search
of his person was tainted by the illegal arrest that preceded it. The arrest was illegal, he argued,
because the detectives failed to release him on a summons pursuant to Code 19.2-74(A)(1).
The trial court denied the motion to suppress. Citing Atwater v. City of Lago Vista, 532 U.S.
318, 121 S. Ct. 1536, 149 L. Ed. 2d 549 (2001), the trial court held the arrest violated neither the
Fourth Amendment nor Virginia law permitting an officer to arrest for a misdemeanor
committed in his presence. After hearing additional evidence, the trial court convicted appellant
and sentenced him to five years in prison, one year and six months suspended. This appeal
followed.
II.
ANALYSIS
Code 19.2-74 provides, in pertinent part:
A. 1. Whenever any person is detained by or is in the custody of an
arresting officer for any violation committed in such officer's
presence which offense is a violation of any county, city or town
ordinance or of any provision of this Code punishable as a Class 1
or Class 2 misdemeanor or any other misdemeanor for which he
may receive a jail sentence, except as otherwise provided in Title
46.2, or 18.2-266, or an arrest on a warrant charging an offense
for which a summons may be issued, and when specifically
authorized by the judicial officer issuing the warrant, the arresting
officer shall take the name and address of such person and issue a
summons or otherwise notify him in writing to appear at a time and
place to be specified in such summons or notice. Upon the giving
by such person of his written promise to appear at such time and
place, the officer shall forthwith release him from custody.
However, if any such person shall fail or refuse to discontinue the
unlawful act, the officer may proceed according to the provisions
of 19.2-82.
Anything in this section to the contrary notwithstanding, if any
person is believed by the arresting officer to be likely to disregard
a summons issued under the provisions of this subsection, or if any
person is reasonably believed by the arresting officer to be likely to
cause harm to himself or to any other person, a magistrate or other
issuing authority having jurisdiction shall proceed according to the
provisions of 19.2-82.
Driving while one's license is suspended is a Class 1 misdemeanor. Code 46.2-301(C).
Therefore, in the instant case, Code 19.2-74 required the detectives to issue appellant a
summons and release him from custody upon securing his promise to appear unless:
(1) appellant's offense was drunk driving under Code 18.2-266 or a specifically exempted
offense under Title 46.2, (2) appellant failed or refused to discontinue the unlawful act, (3) the
detectives believed appellant was likely to disregard the summons, or (4) the detectives
reasonably believed appellant was likely to cause harm to himself or to another person. Code
19.2-74; see also West v. Commonwealth, 36 Va. App. 237, 240-42, 549 S.E.2d 605, 606-07
(2001). Absent proof of facts supporting application of one of these exceptions, a full custodial
arrest, necessary to justify a search of the individual incident to arrest, was not permitted under
the statute.
As the United States Supreme Court explained in Knowles v. Iowa, 525 U.S. 113, 119
S. Ct. 484, 142 L. Ed. 2d 492 (1998), upon which appellant relies, the Fourth Amendment also
places limitations on searches conducted incident to issuance of a citation. In Knowles, 525 U.S.
at 114, 119 S. Ct. at 486, an Iowa police officer stopped Knowles for speeding and, as permitted
by statute, exercised his discretion to issue Knowles a citation rather than arrest him. After
issuing the citation, the officer conducted a full search of Knowles's car, found a bag of
marijuana and a "pot pipe" under the driver's seat, and arrested Knowles for offenses related to
his possession of that contraband. Id. The Supreme Court considered whether conducting a full
search of Knowles's vehicle pursuant to the issuance of a traffic citation was consistent with the
Fourth Amendment and concluded that it was not. Id.
According to the Supreme Court, "two historical rationales [exist] for the 'search incident
to arrest' exception [to the Fourth Amendment]: (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." Id. at 116, 119
S. Ct. at 487. The Court determined in Knowles that neither rationale was present and refused to
extend the "search-incident-to-arrest" exception to permit searches incident to the issuance of
citations. Id. at 118-19, 119 S. Ct. at 488. The Court held that "officers have other, independent
bases to search for weapons and protect themselves from danger," including the ability to
"perform a 'patdown' of [the detainee] upon reasonable suspicion that [he] may be armed and
dangerous." Id. at 117-18, 119 S. Ct. at 488 (citing Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20
L. Ed. 2d 889 (1968)).
The Virginia Supreme Court addressed a similar issue in Lovelace v. Commonwealth,
258 Va. 588, 522 S.E.2d 856 (1999). Lovelace and several other men were drinking beer while
standing in the parking lot of a convenience store known to be an "open air drug market." Id. at
591, 522 S.E.2d at 857. Officers in the area saw a beer bottle fly through the air but did not see
who threw it. Id. One officer testified that the bottle came from the area where Lovelace was
standing. Id. Lovelace and the other men were ordered to lie face down on the ground. Id. An
officer approached Lovelace and asked him his name. Id. Lovelace identified himself but
remained silent when the officer asked him whether he had any drugs or guns. Id. The officer
proceeded to "pat down" Lovelace. Id. In Lovelace's pocket, he felt something like a plastic
bag with lumps in it, but he did not know what was in the bag. Id. at 591-92, 522 S.E.2d at 857.
The officer nevertheless reached in Lovelace's pocket and retrieved the bag. Id. at 592, 522
S.E.2d at 857. The substance was later identified as crack cocaine. Id.
In reversing Lovelace's conviction, the Court said:
Knowles is applicable. . . . [T]he 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 [Deputy] 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
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.
Id. at 596, 522 S.E.2d at 860; see also West, 36 Va. App. 237, 549 S.E.2d 605; Rhodes v.
Commonwealth, 29 Va. App. 641, 513 S.E.2d 904 (1999) (en banc).
The United States Supreme Court subsequently revisited Knowles, holding in Atwater,
532 U.S. at 354, 121 S. Ct. at 1557, that an officer effecting a custodial arrest for a misdemeanor
traffic offense may search the arrestee without violating the Fourth Amendment. However, we
noted in West that the Court reached this conclusion in the context of a state statute that
expressly authorized a custodial arrest in such circumstances and gave the officer the discretion
to issue a summons in lieu of effecting an arrest. West, 36 Va. App. at 242 n.2, 549 S.E.2d at
607 n.2. Because the statute at issue in Atwater was significantly different from Virginia's, we
held in West that the ruling in Atwater "does not apply in this case." Id. We then applied
Knowles to hold unconstitutional the search of West conducted while he was handcuffed and
under arrest for a citation-only offense. Id. at 240-42, 549 S.E.2d at 606-07. Thus, we
concluded in West that the holding in Atwater had no effect on the holding of Knowles that an
officer who conducts a search pursuant to issuance of a summons violates the Fourth
Amendment. See id. Atwater did not address the impact of the Fourth Amendment on a search
incident to a custodial arrest for a misdemeanor offense effected in violation of a state statute
authorizing only the issuance of a summons.
Here, rather than searching pursuant to issuance of a summons as in Knowles, the
detectives arrested appellant and searched him incident to that arrest. Appellant contends that
arrest violated Code 19.2-74 and the United States and Virginia Constitutions and, thus, that
the fruits of the accompanying search must be suppressed. Ordinarily, a statutory violation does
not require the suppression of evidence obtained as a result of that violation "'absent an express
statutory provision for suppression.'" Janis v. Commonwealth, 22 Va. App. 646, 651, 472
S.E.2d 649, 652 (quoting Troncoso v. Commonwealth, 12 Va. App. 942, 944, 407 S.E.2d 349,
350 (1991)), aff'd on reh'g en banc, 23 Va. App. 696, 479 S.E.2d 534 (1996). However, in light
of the Supreme Court's declaration in Knowles that the Fourth Amendment does not permit a
search incident to issuance of a citation, we now conclude that a search conducted pursuant to a
custodial arrest that violates Code 19.2-74 constitutes, in effect, a search incident to issuance of
a citation in violation of the Fourth Amendment. Knowles holds that if an officer, exercising his
discretion as permitted by statute, chooses only to issue a citation rather than to effect a full
arrest, a search incident to issuance of that citation is unconstitutional. We see no reason to
reach a different result when it is the legislature that has concluded that, absent additional facts,
only a citation should be issued for a particular offense.
Although Knowles did not expressly address this scenario, neither Knowles nor Atwater
precludes this approach, and we hold that exclusion, under the facts of appellant's case, is a
logical and necessary extension of the decision in Knowles. The Virginia Supreme Court
intimated as much in Lovelace when it observed "The fact that the officers could have issued
only a summons for the alcohol-related offense [under the relevant state statute] also negates the
Commonwealth's argument that the existence of probable cause to charge Lovelace with
drinking an alcoholic beverage in public allowed [Deputy] Womack to search him." 258 Va. at
596, 522 S.E.2d at 860. Where a statute authorizes only the issuance of a citation for certain
minor offenses, pursuant to which a full search would be unconstitutional under Knowles, to
hold admissible the fruits of a search, conducted by an officer who effects a full custodial arrest
under circumstances clearly not permitted by statute, would yield inconsistent results and would
be fraught with the potential for abuse. Any officer so desiring could intentionally effect a full
custodial arrest contrary to clearly established state law in order to avoid running afoul of
Knowles, thereby placing the search beyond the power of the court to review. Cf. Crosby v.
Commonwealth, 6 Va. App. 193, 200-01 & n.9, 367 S.E.2d 730, 735 & n.9 (1988) (holding
existence of probable cause and exigent circumstances may justify warrantless entry of residence
so long as police are "not . . . responsible for creating their own exigencies").
We recognize that, under appropriate circumstances, the good faith exception to the
exclusionary rule permits the admission of evidence obtained by an officer mistaken about the
law. See, e.g., United States v. Gould, 326 F.3d 651, 659-60 (5th Cir. 2003). However, the
burden rests on the government to prove good faith. See, e.g., United States v. Brunette, 256
F.3d 14, 17 (1st Cir. 2001). Here, the Commonwealth made no argument that the arresting
officers misperceived the law. Further,
the exception is not devised for the unlawful conduct of all officers
who mean well. The good faith belief must be grounded in
objective reasonableness. The mistake of an operative fact or an
error of technical nature may not bar admission of evidence.
[Circumstances are different where the mistake is] on a basic point
of established law. To extend the exception so far as to allow
evidence of a clearly unlawful warrantless search . . . would put
too great a premium on ignorance of the law and would virtually
terminate the exclusionary rule.
United States v. Whaley, 781 F.2d 417, 421 (5th Cir. 1986) (citations omitted) (emphases
added). When Detectives Anthony and McAndrew encountered appellant on February 20, 2003,
both the relevant provisions of Code 19.2-74 and the Supreme Court's 1998 holding in
Knowles were established law, and their misapplication of that law was not objectively
reasonable.
Applying these principles to the facts of this case, we hold the search was
unconstitutional because the Code made clear that, absent additional facts, the detectives were
required to issue appellant a summons for the misdemeanor offense of driving on a suspended
license. See Code 19.2-74; Code 46.2-301 (providing that driving while one's license is
suspended is a Class 1 misdemeanor). The Commonwealth argues only that the police had
"reason to believe that the unlawful activity would not cease had they released [appellant] on a
summons" because appellant was alone in the car with an animal "that could not be easily
contained" and because "no one was available to take [appellant] or his dog from the scene."
The Commonwealth thus argues that Code 19.2-74 permits an arrest when the officers had
"reason to believe that the unlawful activity would not cease had they released [appellant] on a
summons." The Commonwealth, however, misapprehends the appropriate question under the
statute. The trial court must determine whether the facts establish that appellant failed or refused
to discontinue the unlawful act; whether the police had reason to believe appellant would fail or
refuse to discontinue the unlawful act is immaterial. Cf. Fox v. Commonwealth, 43 Va. App.
446, 449-50, 598 S.E.2d 770, 771 (2004) (discussing the standard to be applied in evaluating the
applicability of exceptions (3) and (4)). That appellant was alone in the car with his dog and no
one else was present to transport him from the scene do not establish that he failed or refused to
discontinue the unlawful activity. No other evidence bearing on the question was introduced,
and the trial court made no finding that appellant attempted to drive his car again after the initial
stop. See Lovelace, 258 Va. at 596, 522 S.E.2d at 860 ("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. However, there is no evidence in the record that Lovelace acted
in such a manner." (citation omitted)).
We dealt with similar facts in West. In that case, a police officer observed West execute
a turn in his car without using a signal. West, 36 Va. App. at 238, 549 S.E.2d at 605. West
subsequently parked his car, at which time the officer approached and asked to see West's
license. Id. West informed him that he did not have a license, and the officer confirmed he was
not licensed to drive. Id. He then handcuffed West, told him he was under arrest "for driving
without a license," and began filling out a summons. Id. While filling out the summons, the
officer noticed a bulge in West's shoe. Id. The officer searched the shoe and recovered crack
cocaine. Id. We held that the cocaine should have been suppressed because the officer did not
have authority to conduct the search where the evidence failed to establish that one of the
exceptions to Code 19.2-74 applied. Id. at 242, 549 S.E.2d at 607. Specifically addressing the
failure of the evidence to establish the applicability of the second exception, we stated that West
"stopped the car before [the officer] approached him, and [the officer] had already started the
paperwork to have the car towed. Therefore, [West] ceased the unlawful behavior." Id. at 240,
549 S.E.2d at 606. Because West had ceased the unlawful behavior and because there was no
evidence that he had failed or "refused to discontinue his unlawful acts," we held that the second
exception did not apply and that his detention was illegal. Id. at 242, 549 S.E.2d at 607.
Here, appellant ceased the unlawful activity of driving on a suspended license when the
detectives stopped him, and no evidence was introduced establishing that he failed or refused to
discontinue the unlawful act. We conclude that the evidence in the instant case fails to establish
the applicability of an exception to Code 19.2-74(A)(1). Accordingly, appellant's arrest
violated Code 19.2-74, under which only issuance of a citation was authorized, and the
evidence obtained as a result of the search, which was, in effect, conducted pursuant to issuance
of a citation, should have been suppressed as fruit of the poisonous tree. See Wong Sun v.
United States, 371 U.S. 471, 485-86 (1963). For the foregoing reasons, we reverse and dismiss
the indictment.
Reversed and dismissed.
Annunziata, J., dissenting.
I agree with the majority that Moore was arrested in violation of Code 19.2-74.
However, I cannot concur in the judgment to reverse. I would hold that, because Moore was
placed under full custodial arrest supported by probable cause to believe a criminal offense was
committed, Moore's arrest did not violate the United States Constitution. The exclusionary rule
therefore does not apply, and Moore's conviction should be affirmed.
The evidence in this case establishes beyond dispute that Moore was placed under a full
custodial arrest supported by probable cause that a criminal offense had been committed. After
stopping Moore in his vehicle, an officer on the scene determined that Moore's driving license
was suspended. Thus, the police had probable cause to believe that Moore was driving on a
suspended license, a misdemeanor violation of Code 46.2-301(C). Moore was subsequently
placed in handcuffs, made to wait forty-five minutes by his car until animal control arrived, and
then transported to his hotel room.
I.
Because Moore's arrest was based on probable cause that he committed the offense of
driving on a suspended license, the arrest did not violate the Fourth Amendment to the United
States Constitution. See Atwater v. City of Lago Vista, 532 U.S. 318, 354 (2001) (holding 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" (emphasis added)); see also Penn v. Commonwealth, 13 Va. App. 399, 407, 412
S.E.2d 189, 194 (1991) (holding that "probable cause is the standard for testing the constitutional
validity of an arrest").
Furthermore, it is clear that the Fourth Amendment to the United States Constitution is
not violated as a result of a state law violation. The principle that state law is not relevant to a
determination of whether the Fourth Amendment is violated, and thus whether the concomitant
exclusionary rule is implicated, is firmly rooted in jurisprudence. See California v. Greenwood,
486 U.S. 35, 43 (1988) (holding that evidence obtained in violation of California law should not
have been excluded under the Fourth Amendment because the Court has "never intimated . . .
that whether or not a search is reasonable within the meaning of the Fourth Amendment depends
on the law of the particular State in which the search occurs"); see also Knight v. Jacobson, 300
F.3d 1272, 1276 (11th Cir. 2002) (holding that "[t]here is no federal right not to be arrested in
violation of state law"); United States v. Van Metre, 150 F.3d 339, 347 (4th Cir. 1998) (holding
that whether the arrest was "conducted in accordance with Tennessee state law is irrelevant to
our analysis" of whether to suppress the evidence pursuant to the federal exclusionary rule);
United States v. Bell, 54 F.3d 502, 504 (8th Cir. 1995) (holding the lower court erred by looking
to state law to determine that the arrest was invalid, and thus excluding the evidence, because
"[a]n arrest by state officers is reasonable in the Fourth Amendment sense if it is based on
probable cause"); United States v. Wright, 16 F.3d 1429, 1437 (6th Cir. 1994) (holding that
"[t]he fact that the arrest, search, or seizure may have violated state law is irrelevant as long as
the standards developed under the Federal Constitution were not offended . . . because the
exclusionary rule is only concerned with deterring Constitutional violations"); United States v.
Walker, 960 F.2d 409, 415 (5th Cir. 1992) (holding that "[w]hether the Fourth Amendment has
been violated is determined solely by looking to federal law on the subject" (emphasis added));
Anderson v. Haas, 341 F.2d 497, 499 (3d Cir. 1965) (evaluating civil rights claim and holding
that whether an arrest violates the federal constitution requires reference to federal law and that it
is "immaterial whether [the police officer's] conduct is legal or illegal as a matter of state law"
(internal quotations omitted)); Horne v. Commonwealth, 230 Va. 512, 519, 399 S.E.2d 186, 191
(1986); Penn, 13 Va. App. at 406, 412 S.E.2d at 194.
Moreover, this Court has held that exclusion is not an appropriate remedy when a state
statute is violated "'absent an express statutory provision for suppression.'" Janis v.
Commonwealth, 22 Va. App. 646, 651, 472 S.E.2d 649, 652 (quoting Troncoso v.
Commonwealth, 12 Va. App. 942, 944, 407 S.E.2d 349, 350 (1991)), aff'd on reh'g en banc, 23
Va. App. 696, 479 S.E.2d 534 (1996). Code 19.2-74 does not direct that evidence obtained in
violation of its provisions must be suppressed. I would therefore find that the exclusion of
evidence in this case is without legal support.
II.
That Moore was arrested based on probable cause is not a factor in the majority's
calculus. Instead, the majority concludes that Moore was, "in effect," searched incident to a
citation because Code 19.2-74 does not permit a full custodial arrest. It cites Knowles v. Iowa,
525 U.S. 113 (1998), in support of the fiction it creates and does so in order to avail itself of the
Knowles holding. In Knowles, a case originating in Iowa, a state statute gave the police the
discretionary authority to either arrest or issue a citation for the minor traffic violation of
speeding. Id. at 115. The Supreme Court held that a search conducted incident to the issuance
of a citation violates the United States Constitution. Id. at 114. The majority in this case
concludes that, because Code 19.2-74 does not authorize an arrest and limits police discretion
to the issuance of a summons, the search in this case can only be denominated as incident to the
issuance of a citation, in which case the Knowles holding would require exclusion of the seized
evidence. I cannot concur in this reasoning.
It is undeniable that the Supreme Court in Knowles noted the Iowa statutory provision
permitting a police officer to issue a citation for speeding rather than effecting an arrest. Id. at
115. However, the majority places undue reliance on this factual distinction because the
statutory authority to arrest had no bearing whatsoever on the decision. See id. at 114. The
Supreme Court confined itself to determining "whether [a search incident to a citation]
authorizes the officer, consistently with the Fourth Amendment, to conduct a full search of the
car," id., and the question was answered in the negative. Id. ("We answer this question 'no.'").
A careful reading of Knowles discloses not a single reference to the discretionary authority
granted to the Iowa police force to arrest as a reason for the Supreme Court's conclusions.
Rather, the critical fact for the Supreme Court was that the defendant was not arrested and,
because the defendant was not arrested, that the "historic rationales" underlying the search
incident to arrest exception were not present. Id. at 116-17 ("The threat to officer safety from
issuing a traffic citation, however, is a good deal less than in the case of a custodial arrest."
(Emphasis added)). The Supreme Court's reasoning makes abundantly clear that the search
incident to arrest exception applies only when an actual arrest takes place because only then are
the historic rationales underlying the exception present. This reading of Knowles comports not
only with the language of the opinion itself but also with prior Supreme Court precedent. See,
e.g., United States v. Robinson, 414 U.S. 218, 235 (1973) ("It is the fact of the lawful arrest
which establishes the authority to search . . . ." (emphasis added)). On the other hand, the
majority's reading of Knowles requires the conclusion that the decision signified, sub silentio, a
sea change in federal law. Cf. supra Part I.
In the present case, we must address a question not addressed in Knowles. The facts
establish that an arrest occurred, not that a citation was issued. The question formulated by those
facts is whether an arrest that occurs in violation of state law also violates the Fourth
Amendment to the United States Constitution, triggering the exclusionary rule.
We answered this question in the negative in Penn. In Penn, this Court considered
whether to exclude evidence obtained by a police officer incident to an arrest that violated Code
19.2-81, a statute granting police the authority to arrest for misdemeanors only when
committed in their presence. Penn, 13 Va. App. at 401, 412 S.E.2d at 190. We determined that
the police officer's arrest of the defendant violated Code 19.2-81 because the crime did not
take place in the police officer's presence. Id. at 402, 412 S.E.2d at 190. We affirmed the
conviction, however, reasoning that, although the arresting police officer was not in the presence
of the defendant when the crime was committed, the officer had probable cause to believe that a
crime had been committed because he was informed of the crime by another police officer. Id. at
408, 412 S.E.2d at 194. Because the officer had probable cause to believe the defendant
committed a crime, we held that his arrest did not violate the Fourth Amendment and that the
evidence obtained incident to the arrest could not be suppressed. Id.
Although this case arose under a different statute, Code 19.2-74 rather than Code
19.2-81, I perceive no principled distinction than can be made which would compel a result
different from that reached in Penn. Indeed, nothing in Virginia case law interpreting Code
19.2-74 requires a different result. To the extent the majority relies on Virginia cases to reach
a different result, the reliance is misplaced; none of the cases cited involved a full custodial arrest
of the defendant in violation of Code 19.2-74, the circumstances presented here. In Lovelace
v. Commonwealth, 258 Va. 588, 522 S.E.2d 856 (1999), the defendant was not placed under
custodial arrest. Id. at 592, 522 S.E.2d at 857. The Court thus rejected "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." Id. at 596, 522 S.E.2d at 860. In West v.
Commonwealth, 36 Va. App. 237, 549 S.E.2d 605 (2001), a search conducted immediately after
the officer was "filling out the summonses" and before an arrest could be effected was not
justified by the search incident to arrest exception. Id. at 240-42, 549 S.E.2d at 606-07. Finally,
in Rhodes v. Commonwealth, 29 Va. App. 641, 513 S.E.2d 904 (1999) (en banc), we held that
the search incident to arrest exception could not apply where the defendant was searched during
a "non-custodial detention." Id. at 645, 513 S.E.2d at 906.
Because Moore's arrest was based on probable cause, I am compelled to conclude that
his Fourth Amendment rights were not violated. In the absence of a violation of Moore's Fourth
Amendment rights, the federal exclusionary rule cannot apply, and neither the statute nor
Virginia case law provides for an exclusionary rule. Accordingly, I would vote to affirm
Moore's conviction.
Detective Karpowski had checked the driver's license of a man named "Chubs" the
week before, and had determined he was driving on a suspended license. However, the man
Karpowski knew to be nicknamed "Chubs" was a man named Christopher Delbridge, not David
Moore.
Officer Anthony testified this all happened "approximately fifteen minutes after we had
him stopped."
The officers believed the dog was a pit bull, and it was "very upset with [the detectives'
presence]" and "big enough" that the officers "did not want to get too close to it." The
Commonwealth argues on brief that the dog's presence was a factor in the officers'
determination that Moore would be unable to discontinue the unlawful act of driving on a
suspended license. The Commonwealth's contention is without merit because Moore's arrest
was in violation of Code 19.2-74(A)(1), and it did not fall into any of the exceptions allowing
the officers to effectuate such an arrest. See Part II(A), infra.
Neither Moore nor the Commonwealth disputes that there was a custodial arrest. The
only contention is the validity of that arrest under both the Code of Virginia and the United
States Constitution.
In its brief, the Commonwealth did not address whether the officers had probable cause
to arrest Moore, and Moore concedes the existence of probable cause that an offense under the
laws of the Commonwealth was committed. The Commonwealth only argues that the officers
did not violate the statute by arresting him. The Commonwealth contends the arrest was in
accordance with one of the three exceptions as listed in the statute to the citation requirement.
In West, the trial court denied a motion to suppress the evidence obtained as a result of
a search. West, 36 Va. App. at 238, 549 S.E.2d at 605. This Court reversed, finding the search
was in violation of the defendant's Fourth Amendment rights. Id. The officer, operating under
"the preference for the issuance of a summons," began to write a summons for failing to signal a
turn. Id. at 241, 549 S.E.2d at 607. The officer then noticed a bulge in defendant's shoe,
searched him, retrieved cocaine, and arrested him. Id. At the time of the search, defendant had
been placed under "arrest" for the sole purpose of writing a citation. Before spotting the bulge in
the defendant's shoe, the officer had decided to issue the summons rather than arrest defendant
because he had no "indication [defendant] would not appear or that he was a threat to himself or
others." Id. This Court found the officer conducted a search incident to a citation, which
violates the Fourth Amendment. See Knowles v. Iowa, 525 U.S. 113 (1998).
The Atwater Court rejected the argument that there should be a new rule of
constitutional law forbidding custodial arrest, even on probable cause, for minor offenses which
ultimately carry no jail time and for which the government can show no compelling need for
immediate detention. Atwater, 532 U.S. at 345-50. In order to address the concerns that may
arise when officers arrest for minor crimes or misdemeanors, the Atwater Court recognizes that
many jurisdictions have chosen to impose more restrictive safeguards through statutes limiting
warrantless arrests for such offenses. Id. at 352.
The Supreme Court of Virginia also recognized that Code 19.2-74(A)(2) did not
contemplate a custodial situation equivalent to an actual custodial arrest. Lovelace, 258 Va. at
596, 522 S.E.2d at 858; see also Rhodes v. Commonwealth, 29 Va. App. 641, 513 S.E.2d 904
(1999) (applying Knowles). However, in this case, the officers did effectuate a custodial arrest
in violation of the statute. This presents two problems. First, the Supreme Court of the United
States has never addressed this particular situation and determined that an arrest in violation of a
state law is also a violation of the federal Constitution. Second, the legislature did not
contemplate this situation, where Moore suggests that "an officer . . . turn[s] a citation offense
into an arrest offense, and thereby insulate[s] the search from judicial review." However, if the
legislature did consider this particular circumstance, they decided not to provide the remedy of
excluding evidence obtained after that arrest.
The dissent would hold that Knowles controls the outcome of this appeal, correctly
noting that Knowles prohibits a search incident to a citation. However, the reasoning of the
dissent fails to consider the underlying rationale for the United States Supreme Court's decision
in Knowles. When read against its decision in Robinson, as noted above, Knowles simply stands
for the proposition that the constitutional rationale justifying a search incident to arrest
evaporates when a suspect is either no longer under arrest, as was the case in Knowles, or never
under arrest, as was the case in Lovelace. Neither is the case here. However statutorily infirm
Moore's custody status was, probable cause unquestionably existed that Moore had committed a
criminal offense under the laws of the Commonwealth. We thus reiterate that, on these facts,
Robinson and Atwater control the outcome of this appeal.
In Weeks, the Supreme Court held that evidence obtained in violation of constitutional
proscriptions against unreasonable searches and seizures may not be used against the accused.
This rule was also made applicable to the states through Mapp v. Ohio, 367 U.S. 643 (1961).
The Court recognized in Atwater that "[i]t is . . . easier to devise a minor-offense
limitation by statute than to derive one through the Constitution . . . ." 532 U.S. at 352, 121
S. Ct. at 155.
? Judge Annunziata participated in the hearing and decision of this case prior to the
effective date of her retirement on December 31, 2004 and thereafter by her designation as a
senior judge pursuant to Code 17.1-401.
The Virginia Supreme Court's recent language in an order affirming this Court's
judgment in Hunt v. Commonwealth, 42 Va. App. 537, 592 S.E.2d 789 (2004) (en banc)
(affirmed without opinion by an evenly divided court), neither compels nor supports a different
result. Hunt v. Commonwealth, No. 040614 (Va. Oct. 8, 2004). The Supreme Court held that
Hunt did not preserve for appeal his claim that the search at issue violated his constitutional
rights and affirmed based solely on his statutory claims:
[Defendant's argument] was inadequate to preserve the
constitutional issue for appeal.
The Court also concludes that the Court of Appeals did not
err in affirming the circuit court's rejection of the defendant's
statutory arguments in support of his motion to suppress.
Assuming, without deciding, that a violation of Code 19.2-74
occurred, the defendant failed to establish that he was entitled to
suppression of the evidence obtained as a result of the search. In
the absence of a violation of a defendant's constitutional rights, the
remedy of exclusion of evidence is not available for a statutory
violation.
Hunt, slip op. at 1-2 (citation omitted) (emphasis added). Thus, the Supreme Court's order in
Hunt actually supports our conclusion that a statutory violation rising to the level of a
constitutional violation requires suppression.
The trial court denied the motion to suppress on the ground that the United States
Supreme Court's decision in Atwater permits police officers to make an arrest for a misdemeanor
traffic offense committed in their presence. However, as discussed supra in the text, we have
held that Atwater is inapplicable to a case such as the instant one because Code 19.2-74 does
not provide the officer with discretion to make an arrest, as did the statute at issue in Atwater.
See West, 36 Va. App. at 242 n.2, 549 S.E.2d at 607 n.2.
Virginia has historically looked to the General Assembly to adopt legislative measures
as a means of protecting constitutional rights under both the federal and state constitutions. See,
e.g., Hall v. Commonwealth, 138 Va. 727, 733-34, 121 S.E. 154, 155-56 (1924); Janis, 22
Va. App. at 651, 472 S.E.2d at 652. In Hunt v. Commonwealth, No. 040614, slip. op. at 1 (Va.
Oct. 8, 2004), discussed infra in Part II, the Supreme Court apparently did not have the occasion
to consider the policy implications of this legal principle and adopt a construction that gives
import to the legislative purpose of the statue. See Bazemore v. Commonwealth, 42 Va. App.
203, 226, 590 S.E.2d 602, 613 (2004). Among the more ostensible and troubling policy issues
engendered by violations of Code 19.2-74, and which inhere in finding that evidence seized in
violation of state law may nonetheless be used to convict, are the absence of a remedy for such
violations and the effective nullification of the statute's mandate. It is not difficult to see that, in
the absence of an exclusionary rule, an officer desiring to conduct a search could effect a
custodial arrest in clear violation of state law and place the fruits of that search beyond review.
Such a result divests Code 19.2-74 of import and effectiveness, creates a positive incentive for
police to disregard the legislative mandate of Code 19.2-74, and gives little effect to the
legislature's "expressed . . . preference for the issuance of a summons in lieu of an arrest warrant
for most misdemeanor cases by enacting Code 19.2-74." West v. Commonwealth, 36 Va. App.
237, 239, 549 S.E.2d 605, 605 (2001).
It has been six years since Knowles was decided, and no subsequent case has invested
the Knowles holding with the meaning suggested by the majority.
In rejecting the Commonwealth's argument, the Supreme Court implicitly rejected the
reasoning of our panel decision in Lovelace, which held that "[t]he Constitution does not require
a full custodial arrest to permit a complete search of the arrestee" where probable cause to arrest
exists. Lovelace v. Commonwealth, 27 Va. App. 575, 585, 500 S.E.2d 267, 272 (1998); see also
Rhodes v. Commonwealth, 29 Va. App. 641, 643 n.1, 513 S.E.2d 904, 905 n.1 (1999) (en banc)
(noting that our panel decision in "Lovelace is no longer a viable precedent").
Despite the fact that Rhodes was not arrested, we commented in footnote 6 of the
opinion that an arrest in violation of Code 19.2-74 would be unconstitutional and, thus, would
require exclusion. Rhodes, 29 Va. App. at 645 n.6, 513 S.E.2d at 907 n.6. However, this
statement was unnecessary to the decision and, as such, is dicta. In any event, the statement
appears to be wrong in light of long-standing precedent from the United States Supreme Court,
federal circuit courts of appeal, and Virginia courts, cited supra.
In this regard, I find the Virginia Supreme Court's recent holding affirming this Court's
decision in Hunt v. Commonwealth, 42 Va. App. 537, 592 S.E.2d 789 (2004) (en banc)
(affirming the defendant's conviction "without opinion"), to be instructive. In a memorandum,
the Court noted the following:
Assuming, without deciding, that a violation of Code 19.2-74
occurred, the defendant failed to establish that he was entitled to
suppression of the evidence obtained as a result of that search. In
the absence of a violation of defendant's constitutional rights, the
remedy of exclusion of evidence is not available for a statutory
violation.
Hunt, slip. op. at 1 (emphasis added). To the extent the majority opinion interprets the Supreme
Court's opinion in Lovelace as standing for the proposition that a search incident to an arrest that
violates Code 19.2-74 is constitutionally impermissible, the Supreme Court's order in Hunt
stating that exclusion does not follow after such an illegal arrest indicates that Lovelace cannot
be so interpreted.
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