Commonwealth of Virginia v. George Griffin ( 1998 )

COURT OF APPEALS OF VIRGINIA
Present: Judges Bray, Overton and Senior Judge Baker *
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION** BY
v. Record No. 0867-98-1 JUDGE RICHARD S. BRAY
AUGUST 18, 1998
GEORGE GRIFFIN
FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH
H. Thomas Padrick, Jr., Judge
John H. McLees, Jr., Assistant Attorney
General (Mark L. Earley, Attorney General, on
brief), for appellant.
James R. McKenry (Heilig, McKenry, Fraim &
Lollar, on brief), for appellee.
George Griffin (defendant) was before the trial court on
indictments alleging possession of cocaine with intent to
distribute, possession of a firearm by a convicted felon, and
distribution of cocaine within 1,000 feet of a school. Defendant
moved the court to suppress evidence related to the offenses,
complaining of a warrantless, unlawful search and seizure.
Following an ore tenus hearing on defendant's motion, the court
concluded that the existence of probable cause required police to
proceed by search warrant and granted defendant's motion. The
Commonwealth appeals pursuant to Code § 19.2-398, and we reverse
*
Judge Baker participated in the hearing and decision of
this case prior to the effective date of his retirement on July
31, 1998 and thereafter by his designation as senior judge
pursuant to Code § 17-116.01.
**
Pursuant to Code § 17-116.010 this opinion is not
designated for publication.
the order.
The parties are fully conversant with the record, and a
recitation of the attendant facts is unnecessary to our
disposition of this appeal.
Guided by well established principles, we view the evidence
in the light most favorable to the prevailing party below,
defendant in this instance, granting all reasonable inferences
fairly deducible therefrom. See Commonwealth v. Grimstead, 12
Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). "Questions of
. . . probable cause to make a warrantless search are subject to
de novo review on appeal. 'In performing such analysis, we are
bound by the trial court's findings of historical fact unless
"plainly wrong" or without evidence to support them.'" Archer v.
Commonwealth, 26 Va. App. 1, 8, 492 S.E.2d 826, 830 (1997)
(citations omitted).
The facts are not in dispute and it is uncontroverted that
police had probable cause to believe that defendant possessed
cocaine at the time of the challenged search and seizure. Under
such circumstances, a warrantless arrest of defendant, together
with an incidental search and seizure of his person, was lawful.
Lovelace v. Commonwealth, 27 Va. App. 575, 582-83, 500 S.E.2d
267, 271 (1998); Code § 19.2-81. Contrary to defendant's
contention, Detective Savino's intentions in undertaking the
search "play no role in ordinary, probable cause Fourth Amendment
analysis." Whren v. United States, 517 U.S. 806, 813 (1996);
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Lovelace, 27 Va. App. at 584, 500 S.E.2d at 271. Similarly, it
is of no moment that defendant's arrest followed the search
"[w]here, as here, the product of the search was not essential to
probable cause to arrest" and was quickly followed by such
arrest. Wright v. Commonwealth, 222 Va. 188, 192, 278 S.E.2d
849, 852-53 (1981).
Accordingly, we reverse the order suppressing the subject
evidence and remand for further proceedings consistent with this
opinion.
Reversed and remanded.
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