Tyrel Marquis Dorrough v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
Present: Judges Kelsey, McClanahan and Haley
Argued at Chesapeake, Virginia
TYREL MARQUIS DORROUGH
MEMORANDUM OPINION * BY
v. Record No. 1759-09-1 JUDGE D. ARTHUR KELSEY
JUNE 22, 2010
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS
Timothy S. Fisher, Judge
Charles E. Haden for appellant.
Kathleen B. Martin, Senior Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellee.
The trial court found Tyrel Marquis Dorrough guilty of possession of cocaine with intent
to distribute and possession of marijuana. On appeal, Dorrough argues the court erroneously
denied his motion to suppress. We disagree and affirm.
I.
When reviewing a denial of a suppression motion, we review the evidence “in the light
most favorable to the Commonwealth, giving it the benefit of any reasonable inferences.” Glenn
v. Commonwealth, 49 Va. App. 413, 416, 642 S.E.2d 282, 283 (2007) (en banc) (citation
omitted), aff’d, 275 Va. 123, 654 S.E.2d 910 (2008). This standard requires us to “give due
weight to inferences drawn from those facts by resident judges and local law enforcement
officers.” Malbrough v. Commonwealth, 275 Va. 163, 169, 655 S.E.2d 1, 3 (2008) (citation
omitted). In doing so, we “consider facts presented both at the suppression hearing and at trial.”
Testa v. Commonwealth, 55 Va. App. 275, 279, 685 S.E.2d 213, 215 (2009) (citation omitted).
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
II.
One afternoon in February 2008, Newport News Police Officer H.A. Westrick made a
traffic stop of a vehicle driven by Dorrough. During the stop, Officer Westrick discovered
Dorrough was driving on a suspended license. Officer Westrick prepared a summons for the
offense and began to explain it to Dorrough. During this conversation, another officer,
Christopher Brown, announced that he saw on the floorboard of Dorrough’s vehicle a small
piece of marijuana. Officer Brown had been a police officer for eleven years and had prior
experience as an adult probation officer. Brown received specialized training on “drug
recognition” and previously attended “several drug interdiction schools also to identify drugs.”
The marijuana appeared to be a “piece of a stem” about a quarter-inch in length and “little bits of
the leaf.” Based upon his training and experience, Brown concluded, “It looked like marijuana.
. . . It appeared to be marijuana from what I have seen in the past.” 1
Officer Westrick likewise observed the stem on the vehicle floorboard and confirmed it
to be marijuana. At that point, Westrick testified she detained Dorrough, advised him of his
Miranda rights, and asked him about the marijuana. Dorrough waived his rights, said the
marijuana was “probably his,” and admitted he had smoked marijuana earlier that day. Westrick
then searched Dorrough’s vehicle and discovered a set of scales with marijuana residue, a bag
containing 13.87 grams of cocaine, additional marijuana residue in a cup holder, a glass
measuring cup with cocaine residue, and a box of plastic bags. During a later interview at the
police station, Dorrough confessed to being a drug runner who “moves” cocaine from Yorktown
to Newport News.
1
Later laboratory analysis confirmed the “piece of a stem and little bits of the leaf”
initially observed by the officers were in fact marijuana. See App. 18, 29 (Dep’t of Forensic Sci.
Cert. of Analysis, Item 1 (March 24, 2008)).
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Prior to trial, Dorrough filed a motion to suppress. He did not contest the traffic stop of
the vehicle. Nor did he object to the scope of the search of the vehicle. Instead, Dorrough
argued the police officers provided insufficient factual basis for their belief that the plant
material on the floorboard was marijuana. The trial court denied the motion, presided over the
trial, and found Dorrough guilty of possession of cocaine with intent to distribute and possession
of marijuana.
III.
Dorrough frames his argument in a circuitous manner. He challenges the search of the
vehicle only by first challenging his “arrest” on drug charges:
In the present case, Dorrough does not challenge the scope of the
search conducted by Officer Brown and Officer Westrick. The
sole issue raised is whether Officer Brown and Officer Westrick
had probable cause to arrest Dorrough for possession of marijuana
and thus to perform a search incident to arrest.
Appellant’s Br. at 10 (emphasis added). That arrest, Dorrough argues, rested solely on the
officers’ observation of a small piece of plant material that could have been something other than
marijuana. 2 Because the officers had no probable cause to believe the plant material was
marijuana, Dorrough reasons, they likewise had no probable cause to arrest him or to search his
vehicle incident to that arrest. Id. at 13 (arguing that no circumstances corroborated the officers’
“belief that the twig was in fact marijuana”).
Before addressing the ultimate issue — probable cause to believe the plant material was
marijuana — we must first clarify the legal context in which the issue arises. At the time the
2
The trial judge similarly understood the issue in these terms. His letter opinion states:
“The gist of the argument of the defendant appears to be simple disagreement with the officer’s
conclusion the plant material on the floor of the car was capable of being identified as
marijuana.” Letter Op. at 3 (Feb. 23, 2009). Dorrough does not argue on appeal, and thus we do
not address, whether probable cause existed for the officers to believe Dorrough possessed the
plant material observed in the vehicle.
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officers observed what they thought was marijuana in Dorrough’s vehicle, he was already in
police custody for driving on a suspended license. Officer Westrick was still explaining the
summons process to Dorrough when Officer Brown saw the marijuana stem. Under Code
§ 19.2-74(A)(1), Westrick was authorized to release Dorrough from custody only after Dorrough
verified in writing “his written promise to appear” in court at the specified time and place. See
Hines v. Commonwealth, 39 Va. App. 752, 758, 576 S.E.2d 781, 784 (2003) (After an officer
presents the summons, the detained person “then gives his written promise to appear at such time
and place before the officer releases him from custody.” (citation and internal brackets omitted)
(emphasis added)). No evidence in the record suggests Dorrough executed the summons prior to
the discovery of the marijuana.
While in custody for the traffic offense, Dorrough could be questioned about the
suspended driving offense or any other matter that did not appreciably lengthen the detention.
As we recently explained, “where a seizure of a person is based on probable cause to believe that
a traffic violation was committed, an officer does not violate the Fourth Amendment by asking a
few questions about matters unrelated to the traffic violation, even if this conversation briefly
extends the length of the detention.” Ellis v. Commonwealth, 52 Va. App. 220, 227, 662 S.E.2d
640, 643 (2008) (citations omitted). The same is true even with a temporary investigatory
detention. During a lawful roadside stop, the
temporary seizure of driver and passengers ordinarily continues,
and remains reasonable, for the duration of the stop. Normally, the
stop ends when the police have no further need to control the
scene, and inform the driver and passengers they are free to leave.
An officer’s inquiries into matters unrelated to the justification for
the traffic stop, this Court has made plain, do not convert the
encounter into something other than a lawful seizure, so long as
those inquiries do not measurably extend the duration of the stop.
Arizona v. Johnson, 129 S. Ct. 781, 788 (2009). Thus, the officers needed no additional legal
authority to justify Dorrough’s detention at the time they asked him if the marijuana stem
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belonged to him. This conclusion is all the more true where, as here, the discovery of suspected
marijuana authorized at minimum a continued investigatory detention. 3
Equally important, it matters not that the discovery of the suspected marijuana ultimately
led to the arrest of Dorrough for marijuana possession, which, in turn, led to the search of the
vehicle. The middle step is legally superfluous. The initial discovery of the marijuana, assuming
probable cause existed, permitted the officers to search the entire vehicle under the automobile
exception to the warrant requirement. “If there is probable cause to believe a vehicle contains
evidence of criminal activity, United States v. Ross, 456 U.S. 798, 820-821 (1982), authorizes a
search of any area of the vehicle in which the evidence might be found.” Arizona v. Gant, 129
S. Ct. 1710, 1721 (2009); Wyoming v. Houghton, 526 U.S. 295, 301 (1999) (“If probable cause
justifies the search of a lawfully stopped vehicle, it justifies the search of every part of the
vehicle and its contents that may conceal the object of the search.” (citation omitted and
emphasis in original)). Thus, when an officer observes what appears to be marijuana “on the
floorboard of the vehicle,” he has “every right to search the passenger area of the car, the trunk,
and any and all containers which might conceal contraband.” United States v. Burnett, 791 F.2d
64, 67 (6th Cir. 1986). 4
3
For an investigatory detention, the “likelihood of criminality ‘need not rise to the level
required for probable cause, and it falls considerably short of satisfying a preponderance of the
evidence standard’ applicable in other contexts.” Raab v. Commonwealth, 50 Va. App. 577,
581, 652 S.E.2d 144, 146 (2007) (en banc) (citation omitted).
4
See also United States v. Booker, 269 F.3d 930, 932 (8th Cir. 2001) (finding the
trooper’s sighting of cannabis within the vehicle “before the traffic stop was completed . . .
generated probable cause to justify the subsequent search” of the vehicle); United States v. Desir,
257 F.3d 1233, 1236 (11th Cir. 2001) (holding crack cocaine in plain view was a sufficient
alternative basis for the court’s denial of defendant’s motion to suppress and validated any
subsequent search of his vehicle); United States v. Orozco, 715 F.2d 158, 160 (5th Cir. 1983)
(per curiam) (concluding officers’ observance of drugs in one section of an automobile provided
evidence that the car might contain other contraband, thus, probable cause to search other
compartments of the vehicle was valid); United States v. LaFountain, 252 F. Supp. 2d 883,
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Properly framed, then, the only issue is whether the officers had probable cause to search
the vehicle after observing in plain view what they believed to be marijuana on the floorboard.
We believe they did.
As the United States Supreme Court has recently emphasized, the “very phrase ‘probable
cause’ confirms that the Fourth Amendment does not demand all possible precision.” Herring v.
United States, 129 S. Ct. 695, 699 (2009). “Perhaps the best that can be said generally about the
required knowledge component of probable cause for a law enforcement officer’s evidence
search is that it raise a ‘fair probability’ or a ‘substantial chance’ of discovering evidence of
criminal activity.” Safford Unified Sch. Dist. # 1 v. Redding, 129 S. Ct. 2633, 2639 (2009)
(quoting Illinois v. Gates, 462 U.S. 213, 238, 244 n.13 (1983)). 5 Demanding more imposes an
“unduly high degree of certainty as to the incriminatory character of evidence,” Texas v. Brown,
460 U.S. 730, 741 (1983) (plurality opinion), and implies — wrongly so — that the Fourth
Amendment requires “that a police officer ‘know’ that certain items are contraband or evidence
of a crime” before they can be seized. Id.
Consequently, the probable cause standard does not “demand any showing that such a
belief be correct or more likely true than false.” Slayton v. Commonwealth, 41 Va. App. 101,
888-89 (D.N.D. 2003) (finding the observation by officers of a crack pipe in plain view during
an initial traffic violation detention supplied probable cause to search the vehicle).
5
An officer may confiscate contraband without any probable cause implicating the
criminality of the possessor. “The critical element in a reasonable search is not that the owner of
the property is suspected of crime but that there is reasonable cause to believe that the specific
‘things’ to be searched for and seized are located on the property to which entry is sought.”
Wyoming v. Houghton, 526 U.S. 295, 302 (1999) (citation omitted). “The right to search and
the validity of the seizure are not dependent on the right to arrest. They are dependent on the
reasonable cause the seizing officer has for belief that the contents of the automobile offend
against the law.” Chambers v. Maroney, 399 U.S. 42, 49 (1970) (quoting Carroll v. United
States, 267 U.S. 132, 158-59 (1925)); accord Fox v. Commonwealth, 213 Va. 97, 100-01, 189
S.E.2d 367, 370 (1972).
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106, 582 S.E.2d 448, 450 (2003) (quoting Brown, 460 U.S. at 742). 6 “Finely tuned standards
such as proof beyond a reasonable doubt or by a preponderance of the evidence, useful in formal
trials, have no place in the probable-cause decision.” Maryland v. Pringle, 540 U.S. 366, 371
(2003) (citation and internal brackets omitted). Police officers need not be “possessed of near
certainty as to the seizable nature of the items.” Brown, 460 U.S. at 741. To be sure, not even a
“prima facie showing” of criminality is required. Gates, 462 U.S. at 235. 7
Equally settled, “a police officer may draw inferences based on his own experience in
deciding whether probable cause exists,” Ornelas v. United States, 517 U.S. 690, 700 (1996),
including inferences “that might well elude an untrained person,” United States v. Cortez, 449
U.S. 411, 418 (1981); see also United States v. Arvizu, 534 U.S. 266, 273 (2002) (emphasizing
that reviewing courts should take into account an officer’s “experience and specialized training”
(citation omitted)). The United States Supreme Court’s “insistence on this point has been
nothing less than overwhelming.” United States v. Johnson, 599 F.3d 339, 343 (4th Cir. 2010)
(collecting cases). 8
Governed by these standards, the trial court did not err in concluding the police officers
had probable cause to search Dorrough’s vehicle after observing what they believed to be
contraband on the floorboard. Officer Brown testified about his prior experience in narcotics
both as a police officer and as a former probation officer. He received specialized training in
6
See United States v. Humphries, 372 F.3d 653, 660 (4th Cir. 2004); United States v.
Jones, 31 F.3d 1304, 1313 (4th Cir. 1994).
7
See also Saunders v. Commonwealth, 218 Va. 294, 300-01, 237 S.E.2d 150, 155
(1977); Westcott v. Commonwealth, 216 Va. 123, 126, 216 S.E.2d 60, 63 (1975); Manley v.
Commonwealth, 211 Va. 146, 151, 176 S.E.2d 309, 313 (1970); Quigley v. Commonwealth, 14
Va. App. 28, 34, 414 S.E.2d 851, 855 (1992).
8
“An officer is entitled to view the circumstances confronting him in light of his training
and experience.” James v. Commonwealth, 22 Va. App. 740, 745, 473 S.E.2d 90, 92 (1996)
(citation omitted). In determining whether probable cause existed, the court also considers “an
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“drug recognition” at law enforcement interdiction schools.9 The small “piece of a stem and
little bits of the leaf,” Brown concluded, “looked like marijuana” and “appeared to be marijuana
from what [he had] seen in the past.” Officer Westrick came to the same conclusion.
Code § 54.1-3401 defines marijuana as “any part of a plant of the genus Cannabis
whether growing or not, its seeds or resin; and every compound, manufacture, salt, derivative,
mixture, or preparation of such plant, its seeds, or its resin.” (Emphasis added.) Given their
specialized training, Officers Brown and Westrick reasonably believed there was a “fair
probability” or a “substantial chance,” Gates, 462 U.S. at 238, 244 n.13, that what they observed
in Dorrough’s vehicle was marijuana. See, e.g., Fox v. Commonwealth, 213 Va. 97, 98, 189
S.E.2d 367, 368 (1972) (holding officers had probable cause to search a vehicle after observing
on “the floorboard ‘some green material similar to tobacco, only it had a little greener color to it,
and a seed’” that they believed to be marijuana). Because Officers Brown and Westrick drew
“on their own experience and specialized training to make inferences . . . that might well elude
an untrained person,” Arvizu, 534 U.S. at 273 (citation omitted), the trial court did not err in
accepting their testimony and finding probable cause justified the seizure of the marijuana stem
and the resulting search of the vehicle for further evidence of contraband. 10
officer’s specialized training and personal experience, unavailable to a person untrained in law
enforcement.” Moore v. Commonwealth, 276 Va. 747, 757, 668 S.E.2d 150, 156 (2008).
9
By noting these facts, however, we do not mean to imply an inexperienced officer could
not have come to the same conclusion or even that it would matter if an inexperienced officer
could never have done so. The governing objective test does not draw distinctions between
probable cause determinations by a “knowledgeable, veteran officer” and those “made by a
rookie” officer faced with precisely the same circumstances. Devenpeck v. Alford, 543 U.S.
146, 154 (2004). It asks only what the objective facts would mean “to police officers trained in
analyzing the observed conduct for purposes of crime control.” Hollis v. Commonwealth, 216
Va. 874, 877, 223 S.E.2d 887, 889 (1976); Taylor v. Commonwealth, 222 Va. 816, 820-21, 284
S.E.2d 833, 836 (1981) (judging probable cause from the perspective of a “trained police
officer”).
10
Given our ruling, it is unnecessary to address whether the officers could have relied
upon Dorrough’s statements — which he made prior to the search of his vehicle — that the
-8-
Finally, we acknowledge Dorrough’s complaint that a sentence of the trial judge’s letter
opinion can arguably be read to suggest he misunderstood the objective test governing probable
cause determinations. See Letter Op. at 4 (Feb. 23, 2009). In Virginia, however, “we presume
[trial] judges know the law and correctly apply it.” de Haan v. de Haan, 54 Va. App. 428, 445,
680 S.E.2d 297, 306 (2009) (citation omitted). The presumption can be rebutted, of course, but
we are particularly skeptical of appellate efforts to piece together such a conclusion from
fragmented statements viewed outside the larger context of the court’s ruling. See generally
Damon v. York, 54 Va. App. 544, 555, 680 S.E.2d 354, 360 (2009) (holding it improper to “fix
upon isolated statements of the trial judge taken out of the full context in which they were made,
and use them as a predicate for holding the law has been misapplied” (citation omitted)). The
full context of the trial court’s opinion in this case does not reflect any conceptual
misunderstanding of the objective nature of the probable cause standard.
IV.
Because the trial court correctly denied Dorrough’s motion to suppress, we affirm his
convictions for possession of cocaine with intent to distribute and possession of marijuana.
Affirmed.
marijuana was “probably his” and that he had earlier that day smoked marijuana. Cf. Duncan v.
Commonwealth, 55 Va. App. 175, 180-81, 684 S.E.2d 838, 840-41 (2009) (concluding
defendant’s voluntary statements provided, at minimum, probable cause for the officer to
conduct the search of his vehicle).
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