Commonwealth of Virginia v. Craig Michael Melvin, Jr., a/k/a Craig Marcel Melvin, Jr.

COURT OF APPEALS OF VIRGINIA
Present: Chief Judge Felton, Judges Elder and Beales
Argued by teleconference
COMMONWEALTH OF VIRGINIA
MEMORANDUM OPINION * BY
v. Record No. 1379-10-1 JUDGE RANDOLPH A. BEALES
NOVEMBER 23, 2010
CRAIG MICHAEL MELVIN, JR., A/K/A
CRAIG MARCEL MELVIN, JR.
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
Louis A. Sherman, Judge
Eugene Murphy, Senior Assistant Attorney General (Kenneth T.
Cuccinelli, II, Attorney General, on brief), for appellant.
(William L. Taliaferro, Jr., on brief), for appellee.
Craig Michael Melvin was charged with possession of a controlled substance with the intent
to distribute. Prior to his trial, Melvin filed a motion to suppress evidence collected by the police,
based on alleged violations of his Fourth Amendment rights. The circuit court granted Melvin’s
motion. The Commonwealth then appealed to this Court, pursuant to Code § 19.2-398(A)(2).
I. BACKGROUND
At approximately 11:10 p.m. on June 14, 2009, Craig Melvin drove into a convenience
store’s parking lot and parked his truck to the side of the building. A private security guard,
Donald Green, noticed the truck, and another car parked beside it, so he went over to investigate.
Green saw a woman leaning into Melvin’s truck on the driver’s side. Curious about what the
woman and Melvin were doing, Green walked closer and looked into the vehicle, where he saw a
baggie containing an off-white substance in Melvin’s lap.
*
Pursuant to Code § 17.1-413, this opinion is not designated for publication.
Green told Melvin to get out of the truck, and then he handcuffed both Melvin and the
woman. Looking around for the baggie, Green asked Melvin where it had gone. Melvin told
Green that it was in his pocket. Acting on this information, Green reached into Melvin’s pocket
and pulled out the baggie. Green looked at it and then put the baggie back into Melvin’s pocket.
Green asked Melvin “what it was,” and, initially, Melvin responded, “You know what it is.”
Melvin eventually admitted that the baggie contained crack cocaine. Green then called his
supervisors and the police.
Officer Brandon Shum of the City of Norfolk Police Department arrived at the
convenience store just after midnight, responding to a “Narcotics in progress call.” After Officer
Shum got out of his patrol car, Green approached Shum and “described the scenario of what was
going on at that point,” giving the officer “a summary of what had happened.”
Officer Shum took the handcuffs off Melvin and replaced them with police department
handcuffs. He then led Melvin to the patrol car, telling Melvin that he was not under arrest “at
this time.” Instead, Officer Shum told Melvin that he was being held in “investigative
detention.”
The officer then asked Melvin, “Is there anything I need to be aware of? Do you have
any weapons or anything like that on you?” Melvin responded, “They are in my right front
pocket.” The officer asked if he could reach into the pocket, and Melvin said, “Yes.” Officer
Shum then reached into that pocket and pulled out “four small loose individual baggies and one
medium size bag that contained approximately ten small individual rocks of what appeared to be
crack.” The officer then put Melvin under arrest, did a complete search of his person, and
discovered four more “small individually wrapped bags” in Melvin’s left front pocket.
Prior to trial, Melvin filed a motion to suppress the evidence collected that night. After
the parties presented their arguments, the circuit court concluded that Green was simply a private
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security guard and not a state actor. Therefore, the court concluded, the Fourth Amendment did
not apply to his actions. 1 The circuit court then found that Melvin had not voluntarily consented
to the search by Officer Shum. Thus, the court concluded, the evidence should be suppressed.
The Commonwealth responded to the circuit court’s finding by arguing that the officer
also had probable cause to search Melvin, so he did not need consent. However, the circuit court
concluded that, even if Officer Shum had probable cause, he did not have authority under the
Fourth Amendment to search Melvin. The court then granted Melvin’s motion to suppress. The
Commonwealth appealed this ruling, specifically claiming as its assignment of error that the circuit
court “erred in holding that the police officer needed consent to search” Melvin’s pockets.
II. ANALYSIS
The Commonwealth argues on appeal that Officer Shum had probable cause to arrest
Melvin before reaching into Melvin’s pocket, and, therefore, Melvin’s Fourth Amendment rights
were not violated, even though the search occurred before his arrest. Melvin argues that Officer
Shum did not have probable cause to arrest him. 2
A. Standard of Review
When the Commonwealth appeals a circuit court’s decision to grant a motion to suppress,
we review the evidence in the record on appeal in the light most favorable to the defendant (here,
Melvin) as the party who prevailed before the circuit court. See Commonwealth v. Peterson, 15
Va. App. 486, 487, 424 S.E.2d 722, 723 (1992); Commonwealth v. Grimstead, 12 Va. App.
1This finding is not challenged now on appeal.
2
Melvin on brief also makes an argument based on reasonable suspicion and Terry v.
Ohio, 392 U.S. 1 (1968), arguing that the officer was not concerned about his safety and,
therefore, did not have legal justification to frisk Melvin. However, as we find that Officer
Shum had probable cause to arrest Melvin, we need not address other exceptions to the Fourth
Amendment’s warrant requirement. Cf. Arizona v. Gant, 129 S. Ct. 1710, 1721 (2009)
(explaining that only one exception to the warrant requirement needs to apply to a situation in
order to find an officer’s behavior was permissible under the Fourth Amendment).
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1066, 1067, 407 S.E.2d 47, 48 (1991). In cases involving Fourth Amendment issues, “we give
deference to the historical facts determined by the circuit court, but we review de novo whether
the legal standard of probable cause was correctly applied to the historical facts.” Brown v.
Commonwealth, 270 Va. 414, 419, 620 S.E.2d 760, 762 (2005). “The issue of whether an
officer acted with probable cause and under exigent circumstances, however, is a mixed question
of fact and law that we review de novo.” Robinson v. Commonwealth, 273 Va. 26, 39, 639
S.E.2d 217, 224-25 (2007). In this case, the parties do not disagree about the facts. They
disagree only on how the law applies to those facts. Therefore, this case involves solely de novo
review.
B. Probable Cause
Under the Fourth Amendment, an officer who has probable cause can place a suspect
under arrest and conduct a search incident to that arrest. See United States v. Robinson, 414 U.S.
218, 224-29 (1973) (discussing “the traditional and unqualified authority of the arresting officer
to search the arrestee’s person”). An officer who has probable cause may also conduct a search
of a suspect prior to placing that suspect under arrest. As the Supreme Court of Virginia has
stated, “A general rule recognized by both federal and state courts is that when probable cause
exists to arrest a person, a constitutionally permissible search of the person incident to arrest may
be conducted by an officer either before or after the arrest if the search is contemporaneous with
the arrest.” Italiano v. Commonwealth, 214 Va. 334, 336, 200 S.E.2d 526, 528 (1973) (per
curiam). The Supreme Court explained this rule in Howard v. Commonwealth, 210 Va. 674,
678, 173 S.E.2d 829, 833 (1970),
When the evidence shows that probable cause exists for arresting a
suspect for a felony, and it is clear that evidence seized in a
contemporaneous search of the suspect’s person was not necessary
to establish probable cause, the search is incidental to the arrest
and is valid whether it takes place at the moment the arresting
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officer takes the suspect into custody or when he announces that
the suspect is under arrest.
Therefore, the question that we must resolve here is whether Officer Shum had probable cause to
arrest Melvin before he reached into the pocket and pulled out the crack cocaine.
When considering probable cause, we are mindful that:
The legal standard of probable cause, as the term suggests, relates
to probabilities that are based upon the factual and practical
considerations in everyday life as perceived by reasonable and
prudent persons. The presence or absence of probable cause is not
to be examined from the perspective of a legal technician.
Taylor v. Commonwealth, 222 Va. 816, 820, 284 S.E.2d 833, 836 (1981). “Probable cause
exists where the facts and circumstances known to the officer warrant a man of reasonable
caution in believing the suspect has committed an offense.” Howard, 210 Va. at 678, 173 S.E.2d
at 833.
In this case, Officer Shum knew that Green had pulled a baggie containing an off-white
substance from Melvin’s pocket and that Melvin had admitted to Green that the substance was
crack cocaine. 3 Officer Shum knew the crack cocaine was still in Melvin’s possession because
Green had returned the baggie to the pocket where he found it and because Melvin himself told
the officer that “they” were in his pocket. Therefore, Officer Shum certainly had sufficient
information to reasonably conclude that Melvin was in possession of a controlled substance.
The Supreme Court’s opinion in Parker v. Commonwealth, 255 Va. 96, 496 S.E.2d 47(1998), is informative here. In that case, Officer Kurisky saw Parker, as he was leaving an area
that the officer considered an open-air drug market, put something in the waistband of his shorts.
Id. at 99, 496 S.E.2d at 49. The officer followed Parker and, while talking to him, saw a pink
object through the fabric of Parker’s shorts. Id. The officer knew, based on his experience, that
3
Melvin does not argue in this appeal that Green’s actions were in violation of the Fourth
Amendment.
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people often hide drugs in their pants and that pink baggies are often used to package crack
cocaine. Id. at 107, 496 S.E.2d at 53. Officer Kurisky placed his hand on the object, realized it
was crack cocaine, and then removed the object from Parker’s shorts. Id. at 99, 496 S.E.2d at 49.
The Supreme Court found that Parker’s Fourth Amendment rights were not violated because,
based on the totality of the circumstances, “Officer Kurisky did indeed have probable cause to
believe that the defendant had committed a crime” before he reached into the shorts. Id. at 106,
496 S.E.2d at 53.
The essential facts here are similar to the facts presented in Parker. Here, Green had seen
the suspected cocaine, and Melvin had admitted that it was crack cocaine. Green relayed this
information to Officer Shum. When the officer then asked Melvin, “Is there anything I need to
be aware of,” Melvin responded, “They are in my right front pocket.” Therefore, just as the
officer in Parker had probable cause to conclude that the pink item was cocaine before he
reached into Parker’s shorts, Officer Shum in this case also had probable cause to conclude that
Melvin had cocaine in his pocket before he reached into that pocket to retrieve the contraband.
Because he had probable cause to arrest Melvin for possession of a controlled substance before
reaching into the pocket, Officer Shum’s actions were permissible under the Fourth Amendment,
even if he did not have Melvin’s consent for the search. Id. at 105-06, 496 S.E.2d at 52-53(agreeing that Parker did not consent to the officer’s removal of the cocaine from his shorts, but
finding that probable cause justified the officer’s actions under the Fourth Amendment).
Melvin contends that Officer Shum testified that he did not have probable cause for an arrest
when reaching into Melvin’s pocket. Therefore, Melvin argues, a court cannot conclude that he
actually had probable cause. Melvin’s argument is not consistent with the record in this case, nor
is it consistent with the law.
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First, Officer Shum never testified that he lacked probable cause to arrest Melvin. He
testified only that he told Melvin that he was not under arrest at that time, but instead was under
investigative detention. Therefore, Melvin’s very premise – that the officer conceded his lack of
probable cause – is incorrect because Officer Shum never testified as Melvin claims he did.
In addition, the subjective legal conclusions of an officer do not determine whether that
officer had probable cause to arrest a suspect. Arkansas v. Sullivan, 532 U.S. 769, 772 (2001)
(restating the rule that “‘subjective intentions play no role in ordinary, probable-cause Fourth
Amendment analysis’” (quoting Whren v. United States, 517 U.S. 806, 813 (1996))); McCain v.
Commonwealth, 275 Va. 546, 552, 659 S.E.2d 512, 516 (2008) (“Review of the existence of
probable cause or reasonable suspicion involves application of an objective rather than a
subjective standard.”); Brown, 270 Va. at 419, 620 S.E.2d at 762 (“Whether an officer has
probable cause to arrest an individual in the absence of a warrant is determined under an
objective test based on a reasonable and trained police officer’s view of the totality of the
circumstances.”); Armstead v. Commonwealth, 56 Va. App. 569, 579 n.7, 695 S.E.2d 561, 565
n.7 (2010) (explaining that courts should consider “what a reasonable, objective officer could
have concluded from the totality of the circumstances” when determining if probable cause
existed). Therefore, for the foregoing reasons, we conclude that Officer Shum did have probable
cause to arrest Melvin before he put his hand into Melvin’s pocket.
III. CONCLUSION
We hold that the circuit court erred when it granted Melvin’s motion to suppress.
Therefore, we reverse that decision and remand this case to the circuit court for further
proceedings consistent with this opinion.
Reversed and remanded.
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