Renee Michelle Parady v. Commonwealth of Virginia

COURT OF APPEALS OF VIRGINIA
PUBLISHED
Present: Judges Beales, Fulton and Lorish
Argued at Fredericksburg, Virginia
RENEE MICHELLE PARADY
OPINION BY
v. Record No. 0744-22-4 JUDGE LISA M. LORISH
JULY 5, 2023
COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF CULPEPER COUNTY
Dale B. Durrer, Judge
Ryan J. Rakness (Rakness & Wright PLC, on brief), for appellant.
Rebecca M. Garcia, Assistant Attorney General (Jason S. Miyares,
Attorney General, on brief), for appellee.
The Commonwealth bears the burden of proving that a warrantless search fits under an
exception to the warrant requirement of the Fourth Amendment. While the exceptions are many,
mere probable cause to arrest is not one of them. Nor can a search be incident to an arrest when the
arrest comes two months after the search. As such, we must reverse and remand for further
proceedings.
BACKGROUND1
Around 1:30 a.m. on January 28, 2021, Culpeper County Sheriff’s Deputy Dustin Tharp
stopped a pickup truck with three occupants: Kenneth Hawkins, Renee Parady, and Leslie Pullen.2
1
When considering a challenge to the denial of a motion to suppress, we “view the evidence
in the light most favorable to the prevailing party, the Commonwealth, with all inferences fairly
deducible from that evidence accorded to the Commonwealth.” McArthur v. Commonwealth, 72
Va. App. 352, 359 (2020).
2
Parady does not challenge the lawfulness of the traffic stop.
Deputy Tharp pulled over the truck after running the license plates and discovering that the plates
belonged to a different vehicle. He ordered Hawkins, the driver, to exit the truck because he had an
outstanding capias for his arrest. Hawkins told Deputy Tharp he knew about the capias, but had not
turned himself in because he had been quarantining after getting sick in a household with people
who had COVID-19, including Parady. Parady, the passenger sitting on the right side of the truck’s
bench seat, remained in the truck with Pullen, who sat in the middle of the bench. Parady was
“extremely nervous.” She told Deputy Tharp that she had “anxiety” because a Florida police officer
had previously held her “against [her] will.”
Deputy Tharp arrested Hawkins on the outstanding warrant. Deputies John Clubb and
David Cole then arrived with a trained narcotics dog, and Deputy Tharp searched Hawkins incident
to arrest without finding any contraband.3 The dog conducted a “free air sniff” and “alerted” to the
driver’s side door of the truck. Hawkins said it was not his truck and denied that he or his
passengers had recently purchased “dope.” Deputy Tharp then removed Pullen from the truck.
Deputy Tharp already knew Pullen—she was a police informant who had given him reliable
information twice in the past. Deputy Tharp pulled her off to the side to search her while asking
why the dog alerted. Pullen said, “[I]t’s in her pussy.” Deputy Tharp found no contraband on
Pullen.
Deputy Tharp then approached Parady while she was still in the truck and said, “Do you
want to give me what you’ve got?” Saying she had “nothing,” Parady became distraught and
apologized. At Deputy Tharp’s direction, Parady got out of the truck with her arms raised, and
Deputy Tharp then guided her and went to the rear of the truck. Deputy Tharp noticed that Parady
3
At the suppression hearing, Deputy Tharp testified that he waited for additional deputies
to arrive before searching Hawkins “for obvious officer safety reasons.”
-2-
squeezed her upper legs together as she moved as though she “may be concealing something in her
pants.” She was wearing what Deputy Tharp described as “yoga elastic style pants.”
Once Parady’s hands were on the back of the truck, Deputy Tharp prepared to search her
and asked if she had “anything on her,” which Parady denied, while starting to pat her own sides
and saying she did not have pockets. Deputy Tharp told her “don’t go reaching,” and Parady
immediately raised her hands, and then placed them on the truck with her feet spread apart, as the
deputy directed.
After her legs were spread apart, Deputy Tharp immediately began to search the area
between Parady’s legs, moving his hand “credit [card] style” and felt “[s]omething abnormal” in the
“groin area” within a second.4 Deputy Tharp explained that he could feel that “there was an object
in . . . the crotch area” that was not “a leg or a body part,” although he could not determine whether
the object was “hard” or “soft.” Deputy Tharp said, “Do you want me to pull it out or do you want
me to go write a search warrant and [have] them pull it out of you at the hospital?” Parady replied
“what,” and Deputy Tharp explained “what’s in your pants or what’s inside of you.” Parady said
her “headphone case” was inside her tights, but claimed, “I don’t know what’s in there.” Deputy
Tharp said, “I’m not dumb,” and Parady repeated, “I swear on my kids I don’t know what’s in the
case.” Deputy Tharp then said “pull it out,” and Parady replied “okay” and removed a black
circular case with a zipper around it.
4
The Commonwealth described the search this way in its opposition to the motion to
suppress:
Tharp ordered the defendant to separate her feet. When Deputy
Tharp went to search defendant’s groin area the first time, the
defendant clenched her upper legs. Deputy Tharp again ordered
the defendant to separate her feet, and this time the defendant
relented. After the defendant complied, Deputy Tharp patted with
his gloved right hand outside of the defendant’s pants in between
her legs for roughly one-half of one second.
-3-
After Deputy Tharp finished searching Parady, he handcuffed her and told her she was
“being detained.” Deputy Clubb placed Parady inside a patrol car. Deputy Tharp then opened the
headphone case and found it contained six capsules containing “white solid material,” a tan rock
inside a folded receipt, and a “ziplock bag with crystalline material.” He then searched the truck
and did not find any contraband. Deputy Tharp read Miranda5 warnings to Parady and reiterated
that she was “being detained.” Parady told Deputy Tharp that she was “holding the drugs for a
friend who lives in town.” Parady also said that she had recently tested positive for COVID-19.
Deputy Tharp released Parady without charging her for possessing the suspected narcotics.
He told Parady that the jail would not accept her due to her illness, but warned her, “That stuff’s
gonna get sent off to the lab, you were in possession of it, and I’m gonna come back and charge
you.” Subsequent laboratory testing established that the suspected narcotics contained Schedule I
and II controlled substances. More than two months later, on April 2, 2021, Deputy Tharp arrested
Parady for possessing the drugs. At a later hearing, Deputy Tharp testified that he did not arrest
Parady during the traffic stop and explained that he “release[d]” her after “detain[ing]” her and that
“she was not arrested until” months later, after “the lab results came back.”
When asked why he searched Parady, Deputy Tharp testified that he was “looking for”
drugs in her crotch based on what the other passenger, Pullen, had told him. When Pullen told him
“it” was in Parady’s genital region, Deputy Tharp testified that he understood “it” to mean narcotics.
Deputy Tharp also explained that he searched Parady “[d]ue to the alert to the odor of narcotics
within the vehicle that she was still sitting in when the certified canine alerted to the vehicle.”
When asked why he did not get a warrant, Deputy Tharp said, “I felt that with the . . . odor of the
narcotics dog, based off of the statements, that I had reasonable suspicion of probable cause to
believe she was concealing narcotics in her pants.”
5
Miranda v. Arizona, 384 U.S. 436 (1966).
-4-
Parady moved to suppress the drugs, arguing that the warrantless search was
unconstitutional.6 The Commonwealth argued that the search was justified as a valid search
incident to arrest because Deputy Tharp had probable cause to believe Parady possessed narcotics
and performed a de facto arrest when he handcuffed Parady, placed her in the patrol car, and read
her Miranda warnings. The Commonwealth further argued that even if Deputy Tharp had not
actually arrested Parady, he could search her solely based on probable cause to arrest her for the
possession of narcotics. Alternatively, the Commonwealth contended that exigent circumstances
justified the search because “a reasonable officer in [Deputy Tharp’s] position would have believed”
that Parady was “concealing” contraband on her person that she intended to “remove[] or destroy[].”
In response, Parady asserted that the search incident to arrest exception could not justify the
warrantless search of her person because (1) Deputy Tharp did not have probable cause to believe
she possessed narcotics, (2) probable cause to arrest does not justify a warrantless search without a
contemporaneous arrest, and (3) the search was not contemporaneous with her arrest. Parady also
argued that exigent circumstances did not justify the search because “the scene [was] totally
secure.”
The trial court found “it’s ludicrous to say” that Deputy Tharp could not “maintain the status
quo to go get a search warrant,” and rejected the exigent circumstances argument. After taking the
other arguments under advisement, the court issued a letter opinion finding that “probable cause to
search [a person] can exist independently of the probable cause to arrest (which contains the right to
search incident to the arrest).” The trial court found that Deputy Tharp “had probable cause to
search” Parady “based on the totality of the circumstances,” including “[t]he dog’s alert combined
6
After general district court Judge Theresa W. Carter agreed the search was
unconstitutional at a preliminary hearing, the Commonwealth nolle prossed the charge and
directly indicted Parady, leading to a suppression hearing in the trial court. The trial court
admitted Deputy Tharp’s testimony from the preliminary hearing at the later suppression
hearing. Thus, his testimony from both hearings is part of the record on appeal.
-5-
with Pullen’s statements, the altered license plate on the truck and [Parady’s] nervous demeanor.”
Thus, the trial court concluded that Deputy Tharp lawfully searched Parady’s person based solely
on probable cause to believe she possessed narcotics. Accordingly, the trial court denied the motion
to suppress. Parady entered a conditional guilty plea for felony possession of a controlled
substance, while reserving her right under Code § 19.2-254 to appeal the court’s denial of her
motion to suppress.
ANALYSIS
The Fourth Amendment protects individuals from unreasonable searches and seizures.
U.S. Const. amend. IV. “[W]arrantless searches are per se unreasonable, subject to a few
specifically established and well-delineated exceptions.” Megel v. Commonwealth, 262 Va. 531,
534 (2001). Deputy Tharp searched Parady without a warrant, thus “the Commonwealth ha[d]
the burden of proving the legitimacy of [the] warrantless search and seizure.” Reittinger v.
Commonwealth, 260 Va. 232, 235-36 (2000). Now appealing the trial court’s denial of her
motion to suppress, Parady “bears the burden of establishing that reversible error occurred.”
Mason v. Commonwealth, 291 Va. 362, 367 (2016). We are “bound by the trial court’s findings
of historical fact unless ‘plainly wrong’ or without evidence to support them.” Knight v.
Commonwealth, 61 Va. App. 297, 305 (2012) (quoting McGee v. Commonwealth, 25 Va. App.
193, 198 (1997) (en banc)). That said, we “review[] de novo the overarching question of
whether a search or seizure violated the Fourth Amendment.” Williams v. Commonwealth, 71
Va. App. 462, 475 (2020).
The Commonwealth argued three theories below. First, that Deputy Tharp had “probable
cause to believe that the defendant was concealing narcotics on her person” and that this
probable cause authorized a warrantless search. The trial court agreed, and the Commonwealth
defends this reasoning on appeal. The trial court did not make a finding on the second theory
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(that Parady was placed under a de facto arrest at the scene and thus the search was “incident to
arrest”) and rejected the third (that the search was justified by exigent circumstances). The
Commonwealth has not asked us to review the court’s fact-based determinations (or lack thereof)
on either of these points here.
As we explain below, probable cause that an individual has contraband, without more,
meets the standard for obtaining a warrant, not searching without one. We then conclude the
record the Commonwealth developed below is insufficient to allow us to apply the right result,
wrong reason doctrine and affirm on any other ground. Finally, we find that the good-faith
exception to the exclusionary rule does not apply.
A. Probable cause that an individual possesses contraband is not an exception to the warrant
requirement.
In the foundational Fourth Amendment case Katz v. United States, 389 U.S. 347, 356-57
(1967), the Supreme Court explained that it had “never sustained a search upon the sole ground
that officers reasonably expected to find evidence of a particular crime and voluntarily confined
their activities to the least intrusive means consistent with that end.” “Searches conducted
without warrants have been held unlawful ‘notwithstanding facts unquestionably showing
probable cause’” because “the Constitution requires ‘that the deliberate, impartial judgment of a
judicial officer . . . be interposed between the citizen and the police.’” Id. at 357 (first quoting
Agnello v. United States, 269 U.S. 20, 33 (1925); and then quoting Wong Sun v. United States,
371 U.S. 471, 481-82 (1963)). This bedrock principle remains true. But the number of
exceptions to the Fourth Amendment warrant requirement make this an exceedingly difficult
analysis, and we sympathize with the trial judge here.
For one, individuals may be searched where “exigent circumstances” exist. Ross v.
Commonwealth, 61 Va. App. 752, 759 (2013) (“One well-recognized exception applies when
‘the exigencies of the situation’ make the needs of law enforcement so compelling that a
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warrantless search is objectively reasonable under the Fourth Amendment.” (quoting Washington
v. Commonwealth, 60 Va. App. 427, 436 (2012))). Exigent circumstances include “continuing
criminal activity, a person requiring medical care, or the destruction of evidence, that likely will
worsen if the officers take the time necessary to get a warrant.” White v. Commonwealth, 73
Va. App. 535, 556 (2021).7 Officer safety and the fear that evidence will be destroyed before a
warrant can be obtained are key justifications for the exigent circumstances exception to the
Fourth Amendment warrant requirement. See Verez v. Commonwealth, 230 Va. 405, 410-11
(1985).8
These same rationales justify the search incident to arrest exception to the warrant
requirement. Chimel v. California, 395 U.S. 752, 763 (1969); Knowles v. Iowa, 525 U.S. 113,
116-18 (1998) (recognizing “the two historical rationales” of “officer safety” and the “need to
discover and preserve evidence”). As a result, the search incident to arrest “exception” is really a
7
Here, the trial court found that exigent circumstances did not justify the warrantless
search because “it’s ludicrous to say” that Deputy Tharp could not “maintain the status quo to go
get a search warrant.” The record supports that finding as, with the presence of three officers on
the scene and Parady safely detained, Deputy Tharp could have preserved the status quo while
seeking a warrant. White, 73 Va. App. at 556-57 (holding that the exigent circumstances
exception is not applicable if, at the time of the search, “it appears that there is no imminent
change to the circumstances about to occur and that the status quo largely can be maintained
while the officers seek a warrant”).
8
On brief, the Commonwealth suggests dicta from Poindexter v. Commonwealth, 16
Va. App. 730 (1993), establishes that a limited search could be justified based on probable cause
of contraband alone, but this reasoning collapses back on the exigent circumstances exception.
In Poindexter, we noted that “if the police have probable cause to effect an arrest, a limited
search may be justified even in the absence of a formal arrest.” 16 Va. App. at 733 (citing Cupp
v. Murphy, 412 U.S. 291, 295-96 (1973)). As Poindexter went on to explain, Cupp has been
interpreted to allow a search without “formal arrest,” where “the suspect is reasonably believed
to be in the actual process of destroying ‘highly evanescent evidence.’” Id. at 733 n.1 (quoting 2
Wayne R. LaFave, Search and Seizure § 5.4(b), at 519 (2d ed. 1987)). Indeed, the United States
Supreme Court has interpreted Cupp as holding that “law enforcement officers may conduct a
search without a warrant to prevent the imminent destruction of evidence.” Missouri v. McNeely,
569 U.S. 141, 149 (2013) (emphasis added) (citing Cupp, 412 U.S. at 296); see also Mitchell v.
Wisconsin, 139 S. Ct. 2525, 2541 (2019) (Thomas, J., concurring) (citing Cupp, 412 U.S. at
295-96).
-8-
subset of the “exigent circumstances” doctrine; one of the “particular types of exigencies—
circumstances that present a compelling need for immediate action—which occur often enough
that the courts treat them as separate exceptions to the Warrant Clause.” Ronald J. Bacigal &
Corinna Barrett Lain, Warrantless Searches—Exigent Circumstances, Va. Prac. Crim. Pro.
§ 4:24 (2022-2023 ed.).
An officer may search after—or even before—an arrest so long as the search “is
substantially contemporaneous with the arrest and confined to the immediate vicinity of the
arrest.” Stoner v. California, 376 U.S. 483, 486 (1964); Copeland v. Commonwealth, 42
Va. App. 424, 433 (2004) (search may occur “either before or after” an arrest so long as “the
search is contemporaneous with the arrest” (quoting Italiano v. Commonwealth, 214 Va. 334,
336 (1973))). This well-established exception to the warrant requirement has long been
understood as promoting officer safety and evidence preservation. Chimel, 395 U.S. at 763;
Knowles, 525 U.S. at 116-18. “When an arrest is made, it is reasonable for the arresting officer
to search the person arrested in order to remove any weapons that the latter might seek to use in
order to resist arrest or effect his escape.” Chimel, 395 U.S. at 762-63. Likewise, it is “entirely
reasonable for the arresting officer to search for and seize any evidence on the arrestee’s person
in order to prevent its concealment or destruction.” Id. at 763. As originally conceived, this
justification extended to the area “within [the arrestee’s] immediate control” and did not extend
to “any room other than that in which an arrest occurs.” Id. “Such searches, in the absence of
well-recognized exceptions, may be made only under the authority of a search warrant.” Id.While the Commonwealth argued below that Parady was arrested the night of the search,
when, after the search, Deputy Tharp placed her in handcuffs and ordered her to stay in the back
of the police vehicle, the Commonwealth has abandoned that argument on appeal—for good
-9-
reason.9 “Brief, complete deprivations of a suspect’s liberty, including handcuffing” do not
automatically transform an encounter into an arrest. Johnson v. Commonwealth, 20 Va. App. 49,
55 (1995) (quoting Thomas v. Commonwealth, 16 Va. App. 851, 857 (1993)). Nor does the “fact
that [the defendant] was placed in the back seat of a police vehicle while awaiting the arrival of
the canine unit.” Lawson v. Commonwealth, 55 Va. App. 549, 559 (2010). Given Deputy
Tharp’s repeated statements to Parady that she was not under arrest and only “being detained”
for further investigation, as well as Deputy Tharp’s testimony that he specifically told Parady he
would not arrest her until he received the lab results, we agree that Parady was not arrested that
night.
Instead, Parady was arrested more than two months later on three felony warrants. There
is no “bright line” rule on how many minutes may pass between search and arrest for the arrest to
still be “contemporaneous.” See, e.g., United States v. Torres-Castro, 470 F.3d 992, 998 (10th
Cir. 2006) (collecting cases in which “courts have found that a search may be incident to an
arrest . . . where the search and arrest were separated by times ranging from five to sixty
minutes”). But we have no trouble concluding that a search occurring two months before an
arrest could not be “contemporaneous.” A search two months before an arrest cannot be justified
by officer safety or evidence preservation.
Because the search incident to arrest exception cannot justify the search here, we next
consider whether probable cause to arrest permits a warrantless search, even in the absence of
any actual arrest. To that end, the Commonwealth draws from the line of cases that explain an
officer “has probable cause to arrest . . . without a warrant” if that officer “has reason to believe
that a person is committing a felony in his presence by possessing contraband or a controlled
In arguing on brief that Deputy Tharp had “probable cause to arrest Parady despite her
9
not having been arrested on scene,” the Commonwealth now concedes Parady was not arrested.
- 10 -
substance.” Purdie v. Commonwealth, 36 Va. App. 178, 186 (2001) (quoting Buck v.
Commonwealth, 20 Va. App. 298, 304 (1995)). But an officer’s internal calculation that there is
probable cause to arrest is not an actual arrest.
The distinction between a formal arrest and mere probable cause to arrest makes a
difference under the Fourth Amendment. As the Supreme Court explained in Terry v. Ohio, 392
U.S. 1, 26 (1968), “[a]n arrest is a wholly different kind of intrusion upon individual freedom.”
“An arrest is the initial stage of a criminal prosecution. It is intended to vindicate society’s
interest in having its laws obeyed, and it is inevitably accompanied by future interference with
the individual’s freedom of movement, whether or not trial or conviction ultimately follows.” Id.Our Supreme Court has elaborated that “[a]fter an arrest, a citizen’s liberty is completely
constrained, at a minimum, until a judicial officer has determined the issue of bail.”
Commonwealth v. Hill, 264 Va. 541, 547 (2002). “In contrast, a[n] . . . investigative detention
constitutes a brief, though not inconsequential, restriction on an individual’s freedom of
movement.” Id. A citizen who has been formally arrested experiences a fundamental change in
legal status—intrusions on an arrestee’s liberty such as a full body search, while still no small
matter, are to be expected. See Terry, 392 U.S. at 26; United States v. Robinson, 414 U.S. 218,
235 (1973) (“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
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no additional justification.” (emphasis added)).10 Not so for a citizen who has yet to even enter
“the initial stage of a criminal prosecution.” Terry, 392 U.S. at 26.11
Given the constitutional implications of the differences between a formal arrest and mere
probable cause to arrest, it is unsurprising that the Supreme Court has held “[i]t is the fact of the
lawful arrest which establishes the authority to search.” Robinson, 414 U.S. at 235. And a
number of our sister states have held the same. See, e.g., State v. Ingram, 331 S.W.3d 746, 758
(Tenn. 2011) (“It is not sufficient that an arrest could have been made; the arrest must have been
made roughly contemporaneously to the search in order for it to justify the search as incident to
an arrest.”); State v. Pallone, 613 N.W.2d 568, 577 (Wis. 2000) (“For the search incident to
arrest exception to apply, there must be an arrest.”); Belote v. State, 981 A.2d 1247, 1256-62
(Md. 2009) (reversing denial of motion to suppress evidence recovered in search of suspect
because suspect had been detained but not formally arrested); People v. Reid, 26 N.E.3d 237, 239
(N.Y. 2014) (“It is irrelevant that, because probable cause existed, there could have been an
arrest without a search. A search must be incident to an actual arrest, not just to probable cause
that might have led to an arrest, but did not.”). Therefore, assuming, without deciding, that
10
An example of such intrusion is the likelihood that an arrestee will be taken to a police
station for the “routine administrative procedure . . . incident to booking and jailing the suspect.”
Illinois v. Lafayette, 462 U.S. 640, 643 (1983). The booking process allows for an even more
intrusive search than permitted by a search incident to arrest. See id. at 645 (“Police conduct that
would be impractical or unreasonable—or embarrassingly intrusive—on the street can more
readily—and more privately—be performed at the station.”); Maryland v. King, 569 U.S. 435(2013) (permitting DNA swab as part of routine booking). Such an “inventory search” does not
even implicate the warrant requirement because the “justification for such searches does not rest
on probable cause, and hence the absence of a warrant is immaterial to the reasonableness of the
search.” Lafayette, 462 U.S. at 643.
11
The Supreme Court has also explained that the officer safety justification for the search
incident to arrest exception is more urgent when a formal arrest has occurred. In Robinson, the
Court recognized that “the danger to an officer is far greater in the case of the extended exposure
which follows the taking of a suspect into custody and transporting him to the police station than
in the case of the relatively fleeting contact resulting from the typical Terry-type stop.” 414 U.S.
at 234-35.
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Deputy Tharp had probable cause to arrest Parady, he did not do so, so no exception to the
warrant requirement applies.12
Before concluding, we briefly address the trial court’s reliance on Bunch v.
Commonwealth, 51 Va. App. 491, 494-96 (2008), and the statement there that “[t]he
constitutional justification for conducting a weapons frisk under Terry . . . does not displace the
far broader authority to seize illegal contraband based on probable cause principles.” While at
first blush this general statement about the distinction between a Terry frisk and a full search
might suggest otherwise, Bunch did not hold that probable cause alone justifies a warrantless
search without some other exception to the warrant requirement. Instead, the officer there had
probable cause to arrest Bunch for marijuana possession before searching him, and then arrested
Bunch on the scene. Id. at 494, 497. As such, the search incident to arrest exception applied to
the facts of Bunch, unlike our case.13
To sum up then, under the Fourth Amendment, probable cause of contraband is the
standard to obtain a warrant, not the standard to search a person without one.
12
Our recent decision in Moreno v. Commonwealth, 73 Va. App. 267, 275 (2021), further
supports this conclusion. There we explained that “the exigences of the situation,” when
“coupled with probable cause,” were sufficient to “make the needs of law enforcement so
compelling that [a] warrantless search [wa]s objectively reasonable under the Fourth
Amendment.” Id. (emphasis added) (quoting Carpenter v. United States, 138 S. Ct. 2206, 2222
(2018)). Probable cause alone is never enough to support a warrantless search of a person.
13
Where, instead, an officer lacks sufficient probable cause to arrest before undertaking a
search, any evidence obtained from the unconstitutional search cannot be used to bootstrap the
pre-search probable cause. Joyce v. Commonwealth, 56 Va. App. 646, 658 (2010) (“When the
probable cause for an arrest exists independently of what the search produces, the fact that the
search precedes the formal arrest is immaterial when the search and arrest are nearly
simultaneous and constitute for all practical purposes but one transaction.” (quoting Italiano, 214
Va. at 337)).
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B. On the record developed below, we cannot conclude any other exception to the warrant
requirement applies.
The only exception to the Fourth Amendment the Commonwealth advanced on brief is
the theory we have rejected above—that probable cause to arrest alone, in the absence of an
actual arrest, is sufficient. We will apply the “right result for the wrong reason doctrine” if
“evidence in the record” supports a different argument on appeal and “the development of
additional facts is not necessary.” Perry v. Commonwealth, 280 Va. 572, 579 (2010). The
standard of review for applying the doctrine is “whether the record demonstrates that all
evidence necessary to the alternative ground for affirmance was before the circuit court and, if
that evidence was conflicting, how it resolved the dispute, or weighed or credited contradicting
testimony.” Banks v. Commonwealth, 280 Va. 612, 618 (2010). The doctrine cannot apply
when a trial court “confined its decision to a specific ground [and] further factual resolution is
needed before the right reason may be assigned to support the trial court’s decision.” Perry, 280
Va. at 579 (quoting Whitehead v. Commonwealth, 278 Va. 105, 115 (2009), abrogated on other
grounds by Perry, 280 Va. at 580).
The burden of justifying the warrantless search below was the Commonwealth’s. Along
with the theory we have rejected, the Commonwealth put on evidence to try to support two
alternative theories—that exigent circumstances justified the search and that Parady was actually
under arrest at the scene. The trial court rejected both arguments and confined its decision to the
specific ground that probable cause to arrest alone is an exception to the warrant requirement.
As a result, the record lacks enough undisputed facts for us to find on appeal that any other
exception to the warrant requirement applies to Deputy Tharp’s warrantless search of Parady.
C. The good-faith exception to the exclusionary rule does not apply.
Finally, the Commonwealth argues on brief that if no exception to the warrant
requirement applies, the exclusionary rule is not an appropriate remedy for the warrantless search
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because Deputy Tharp acted in good faith. The exclusionary rule’s “sole purpose . . . is to deter
future Fourth Amendment violations.” Davis v. United States, 564 U.S. 229, 236-37 (2011). By
“removing the incentive to disregard” constitutional guarantees, the exclusionary rule “compel[s]
respect” for the Fourth Amendment. Elkins v. United States, 364 U.S. 206, 217 (1960). “The
extent to which the exclusionary rule is justified by these deterrence principles varies with the
culpability of the law enforcement conduct.” Herring v. United States, 555 U.S. 135, 143
(2009). In other words, “police conduct must be sufficiently deliberate that exclusion can
meaningfully deter it, and sufficiently culpable that such deterrence is worth the price paid by the
justice system.” Collins v. Commonwealth, 297 Va. 207, 215 (2019) (quoting Herring, 555 U.S.
at 144).
In assessing whether an officer’s conduct was sufficiently deliberate, our Supreme Court
has looked to two considerations: “What was the state of the law governing [the officer’s] search
at the time that he conducted it, and what factual circumstances provided either clarity or
ambiguity to [the officer] in his presumed reliance upon that law?” Id. at 219. In examining “the
state of the law at the time of the search,” we ask whether a “‘reasonably well trained officer
would have known that the search was illegal’ in light of ‘all of the circumstances.’” Id. at
219-20 (quoting Herring, 555 U.S. at 145). Our analysis is “focused on the ‘flagrancy of the
police misconduct at issue,’” and we “employ the ‘last resort’ remedy of exclusion only when
necessary ‘to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances
recurring or systemic negligence.’” Id. at 219 (first quoting Davis, 564 U.S. at 238; and then
quoting Herring, 555 U.S. at 140).
Here, the officer’s conduct warrants application of the exclusionary rule. The
Commonwealth has not argued that Deputy Tharp relied on precedent that has since been
overturned, or a statute that was later invalidated. See Davis, 564 U.S. 229 (officer reasonably
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relied on binding appellate precedent subsequently overturned); Collins, 297 Va. 207 (same);
Illinois v. Krull, 480 U.S. 340 (1987) (police reasonably relied on a subsequently invalidated
statute); Reed v. Commonwealth, 71 Va. App. 164, 174-76 (2019) (same). Nor does the
Commonwealth suggest Deputy Tharp acted based on an external source of information that
(unbeknownst to him) contained an error. See Arizona v. Evans, 514 U.S. 1, 10-16 (1995)
(police reasonably relied on erroneous information about an arrest warrant in a database
maintained by judicial employees); Herring, 555 U.S. at 139-48 (police reasonably relied on
erroneous records maintained by police employees in a warrant database); Bellamy v.
Commonwealth, 60 Va. App. 125, 131-33 (2012) (officer reasonably relied on dispatcher
mistakenly informing him that appellant had an outstanding arrest warrant).
Instead, the Commonwealth argues Deputy Tharp’s search was reasonable because he
had probable cause to arrest Parady on the scene, but chose not to because she said she had
COVID-1914 and because he wanted to send the substance he seized from her to a lab to confirm
his belief that it was illegal narcotics. In Jones v. Commonwealth, 71 Va. App. 375, 384 (2019),
we applied the exclusionary rule when an officer mistakenly believed a statute “prohibit[ed]
crossing a single, solid white line.” Noting that the “statute was not new or recently amended,”
we found there was “no explanation for the officer’s mistake other than inadequate study of the
laws.” Id. Relying on Heien v. North Carolina, 574 U.S. 54, 67 (2014), for the premise that
“[a]n officer can gain no Fourth Amendment advantage through a sloppy study of the laws he is
duty-bound to enforce,” we found that “failure to apply the exclusionary rule in this instance
would reward just such a ‘sloppy study of the law,’” Jones, 71 Va. App. at 384.
14
At the same time, Deputy Tharp did arrest the driver of the vehicle who also said he
was sick after being in a household of people with COVID-19, including Parady.
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Here, Deputy Tharp mistakenly believed he could search Parady without a warrant, and
without arresting her, based on his own assessment of probable cause. The exceptions to the
warrant requirement are “well-defined.” Cromartie v. Billings, 298 Va. 284, 307 (2020) (quoting
Abell v. Commonwealth, 221 Va. 607, 612 (1980)). Probable cause that an individual possesses
contraband is not one of them, as we have explained above. Whatever Deputy Tharp’s
motivations for not arresting Parady, a reasonably well-trained officer would have known that
the search was illegal under these circumstances unless he searched incident to an arrest of
Parady or obtained a warrant. See Collins, 297 Va. at 219. An officer’s mistaken assessment of
unambiguous case law is deliberate conduct that compels application of the exclusionary rule to
deter future constitutional violations.
CONCLUSION
For the above reasons, we reverse the trial court’s judgment denying Parady’s motion to
suppress and remand the case for further proceedings consistent with this opinion.
Reversed and remanded.
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