Commonwealth of Virginia v. Joshua Dickson ( 2001 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Annunziata, Bumgardner and Clements
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 2503-00-1 JUDGE JEAN HARRISON CLEMENTS
APRIL 23, 2001
JOSHUA DICKSON
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Randolph T. West, Judge
Thomas M. McKenna, Assistant Attorney General
(Mark L. Earley, Attorney General, on brief),
for appellant.
James B. Thomas for appellee.
Joshua Dickson stands indicted for possession of cocaine with
intent to distribute in violation of Code § 18.2-248 and
possession of a firearm while in possession of cocaine in
violation of Code § 18.2-308.4(A). The Commonwealth appeals the
trial court's pretrial ruling granting Dickson's motion to
suppress evidence of a .38 caliber handgun and suspected crack
cocaine found in Dickson's pockets during a warrantless search of
his person by police. The Commonwealth contends the trial court
erred in suppressing the evidence because, even though the search
was conducted prior to the formal arrest of Dickson and even
though the search was incident to an "arrest" for what normally is
* Pursuant to Code § 17.1-413, this opinion is not
designated for publication.
a summonsable offense, the officers had probable cause at the time
of the search to arrest Dickson for unlawfully possessing
fireworks and the search was justifiable to protect the officers'
safety and to preserve or discover evidence of Dickson's illegal
possession of fireworks. For the reasons that follow, we reverse
the trial court's suppression of the evidence.
As the parties are fully conversant with the record in this
case and because this memorandum opinion carries no precedential
value, this opinion recites only those facts necessary to a
disposition of this appeal.
In a pretrial appeal of a ruling on a motion to suppress, we
view the evidence in the light most favorable to the prevailing
party, Dickson in this case, granting to him all reasonable
inferences fairly deducible therefrom. See Commonwealth v.
Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991).
"'Ultimate questions of reasonable suspicion and probable cause to
make a warrantless search' involve questions of both law and fact
and are reviewed de novo on appeal." McGee v. Commonwealth, 25
Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (quoting
Ornelas v. United States, 517 U.S. 690, 691 (1996)). However, "we
are 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." Id. at 198, 487
S.E.2d at 261 (citing Ornelas, 517 U.S. at 699).
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The trial court found that the search of Dickson was unlawful
because (1) it was conducted before Dickson was formally arrested
and (2) it went "too far" in a case where normally a summons would
be issued. The Commonwealth first argues that the search of
Dickson was legal because the officers had probable cause when the
search was conducted to arrest Dickson for illegal possession of
fireworks.
"'When an officer has probable cause to arrest a person, the
officer may search the person . . . .'" Williams v. Commonwealth,
21 Va. App. 263, 267, 463 S.E.2d 679, 681 (1995) (quoting Buck v.
Commonwealth, 20 Va. App. 298, 304, 456 S.E.2d 534, 537 (1995)).
"Probable cause to arrest must exist exclusive of the incident
search. So long as probable cause to arrest exists at the time of
the search, however, it is unimportant that the search preceded
the formal arrest if the arrest 'followed quickly on the heels of
the challenged search.'" Carter v. Commonwealth, 9 Va. App. 310,
312, 387 S.E.2d 505, 506-07 (1990) (quoting Wright v.
Commonwealth, 222 Va. 188, 193, 278 S.E.2d 849, 852-53 (1981)
(internal quotations omitted)). "In addition, if the police have
probable cause to effect an arrest, a limited search may be
justified even in the absence of a formal arrest." Poindexter v.
Commonwealth, 16 Va. App. 730, 733, 432 S.E.2d 527, 529 (1993).
"Probable cause exists when the facts and circumstances
within the arresting officer's knowledge and of which [the
officer] has reasonably trustworthy information are sufficient in
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themselves to warrant a [person] of reasonable caution in the
belief that an offense has been or is being committed." Schaum v.
Commonwealth, 215 Va. 498, 500, 211 S.E.2d 73, 75 (1975).
"Probable cause is assessed by considering the totality of the
circumstances pertaining to the facts known to the officer at the
time." United States v. Sokolow, 490 U.S. 1, 9-10 (1989).
Here, Officers Gayle and Berryman were on bike patrol when
they heard firecrackers going off. Their dispatch had also
relayed a report of suspected shots being fired in the area. The
officers followed the noise of the fireworks to an area where they
saw Dickson and a group of other people. Officer Gayle observed
Dickson with a lighter in his hand, preparing to light a
firecracker. Officer Berryman observed Dickson light a
firecracker and throw it in the air. Plainly, these
circumstances, witnessed by the officers, warranted the belief by
a person of reasonable caution that Dickson was unlawfully using
fireworks in violation of Code §§ 59.1-142 and 59.1-145. 1 The
officers therefore had probable cause to arrest Dickson without a
warrant prior to conducting the challenged search.
1
Officer Gayle testified that he originally intended to
charge Dickson with possession of fireworks under the City of
Newport News Code § 16-20; however, neither the charging
document nor the applicable section of the city code were made a
part of the record on appeal. We therefore base our analysis on
Dickson's unlawful use of fireworks in violation of Code
§§ 59.1-142 and 59.1-145.
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Officer Gayle testified that, after observing Dickson
preparing to light a firecracker, he "was going to arrest him for
the possession of fireworks," but he did not put handcuffs on
Dickson or inform him he was under arrest at that point. Gayle
had Dickson step away from the crowd and started checking his
pockets because he "had reason to believe that [Dickson] had more
fireworks on his person" and he wanted "to recover those
fireworks." Incident to that search, Gayle found a .38 caliber
handgun in Dickson's left rear pocket. Gayle immediately placed
Dickson "in custody for concealed weapon [sic] and for [Gayle's]
safety" and continued his search of Dickson's pockets. He then
found a plastic bag containing "eleven individually wrapped pieces
of" suspected crack cocaine in Dickson's watch pocket. Following
the search, Gayle arrested Dickson on the fireworks offense, in
addition to the other charges. 2
We hold, therefore, that, because probable cause to arrest
existed at the time of the search and because the arrest followed
quickly on the heels of the challenged search, the search was not
unconstitutional solely because it had been conducted prior to
Dickson's formal arrest.
Our analysis, however, does not end there. The trial court
also determined that the search of Dickson's person was illegal
because the search was not conducted incident to a lawful
2
The fireworks charge was, Gayle believed, later "nolle
prossed down in criminal court."
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custodial arrest, but incident to a misdemeanor arrest requiring
only the issuance of a summons rather than a custodial arrest.
Officer Gayle, in fact, testified that a suspect in possession of
fireworks would not "normally" be taken into custody, but would be
given a summons and released.
Code § 19.2-74(A)(1) provides that an arresting officer who
has custody or detention of a person for certain misdemeanor
offenses, including unlawful use of fireworks, shall issue the
person a summons and, upon his written promise to appear in
compliance with the summons, shall release that person from
custody. However, that section, in conjunction with Code
§ 19.2-82, permits an officer to effect a warrantless custodial
arrest if the person fails or refuses to discontinue the unlawful
act or refuses to give a written promise to appear, or if the
officer reasonably believes the person will likely disregard the
summons or will likely do harm to himself or others.
Viewed in the light most favorable to Dickson, the evidence
does not support a finding that any of the circumstances
permitting a lawful custodial arrest under Code § 19.2-74(A)
existed here. Thus, we must conclude that, in this case, the
officers could have issued only a summons to Dickson in connection
with his arrest for unlawful use of fireworks.
Following the rationale of the Supreme Court in Knowles v.
Iowa, 525 U.S. 113 (1998), the Supreme Court of Virginia held in
Lovelace v. Commonwealth, 258 Va. 588, 522 S.E.2d 856 (1999), that
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"an 'arrest' that is effected by issuing a citation or summons
rather than taking the suspect into custody does not, by itself,
justify a full field-type search." Id. at 596, 522 S.E.2d at 860.
Code § 19.2-74 does not
contemplate[] 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. . . . Thus, the threat to officer
safety is less.
Id.
However, the Court recognized in Lovelace that concerns for
officer safety or the need to preserve or discover evidence could
warrant an additional intrusion. Id. at 594, 522 S.E.2d at 859.
Such an intrusion, though, must be "limited to what is necessary
to answer" those specific concerns and needs. Id. The Court
applied such rationale in Lovelace as follows:
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 [the officer's] search
exceeded the scope necessary to accomplish
either of those objectives. Once [the
officer] conducted his "patdown" of Lovelace
and felt nothing similar to a weapon, any
reasonable concern for officer safety was
resolved. Likewise, [the officer] 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, [the
officer] did not "reasonably believe" that
the bag was either a weapon or evidence
related to Lovelace's alleged alcohol
offense. Thus, [the officer's] subsequent
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reach into Lovelace's pocket to retrieve the
"squooshy" bag was not in furtherance of
either officer safety or the preservation of
evidence. Once [the officer] 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.
Id. at 596-97, 522 S.E.2d at 860.
Here, Officer Gayle was authorized by Code § 19.2-74(A)(1)
only to issue Dickson a summons for the unlawful use of fireworks.
Accordingly, the search of Dickson's person incident to that
non-custodial arrest was unjustified unless concerns for officer
safety or the need to preserve or discover evidence warranted such
an additional intrusion. Moreover, if such a search was warranted
for those reasons, it had to have been limited to what was
necessary to answer those specific concerns and needs. We hold
that the search by Gayle of Dickson's person was warranted under
the circumstances and was properly limited to accomplish the
permissible objectives set forth in Lovelace.
There was, in this case, a definite concern for the officers'
safety as well as the need to preserve and discover evidence. En
route to the area where illegal fireworks were being ignited,
Officers Gayle and Berryman received a report from dispatch of
suspected gunshots in the same area. Upon their arrival at the
scene, the officers observed Dickson in the act of lighting
firecrackers. This evidence, we believe, supports a finding that
the officers were entitled to reasonably conclude that Dickson was
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armed possibly with a gun and certainly with additional
firecrackers and lighting instruments which constituted a threat
to their safety. Furthermore, Officer Gayle, we believe, was
entitled to reasonably conclude that a search of Dickson's pockets
would yield or preserve further evidence of his illegal use of
fireworks.
Additionally, unlike in Lovelace where the officer felt
nothing during his "patdown" of the suspect similar to a weapon or
evidence related to the original offense, Gayle's search of
Dickson's person revealed a .38 caliber revolver in Dickson's rear
pocket and suspected crack cocaine in his front pocket. We find
that, because the suspected cocaine was eleven individually
wrapped pieces of crack cocaine, rather than a "squooshy" bag like
the drugs found on Lovelace, Gayle could reasonably have concluded
when he felt the suspected cocaine in Dickson's pocket that it was
evidence related to Dickson's unlawful use of fireworks. Hence,
Gayle's retrieval of the handgun and drugs from Dickson's pockets
was in furtherance of the limited permissible objectives of
officer safety and the preservation or discovery of evidence.
We hold, therefore, that the search of Dickson was consistent
with the Fourth Amendment. Consequently, the trial court erred in
suppressing the Commonwealth's evidence.
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Accordingly, we reverse the trial court's suppression of the
evidence and remand this case for further proceedings consistent
with this opinion, if the Commonwealth be so advised.
Reversed and remanded.
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