Moss v. Commonwealth

516 S.E.2d 246, 30 Va. App. 219, 1999 Va. App. LEXIS 418
Court of Appeals of Virginia·Decided July 6, 1999·No. 1235983·Published·Cited by 22 cases

Opinion

LEMONS, Judge.

Tracy Lewayne Moss appeals from his convictions for possession of cocaine and escape from custody. On appeal, he argues (1) that his motion to suppress evidence seized in a strip search should have been granted, and (2) that because he was not lawfully in custody he could not be guilty of escape. We hold that his motion to suppress should have been granted but also hold that he was in custody for purposes of his conviction for escape. Accordingly, we affirm in part, reverse in part, and remand.

I. BACKGROUND

On October 22, 1997, Investigators K.T. Swisher, Wayne Duff, and Kevin D. Holyfield of the Lynchburg Police Department stopped at a gas station on Memorial Avenue in Lynch-burg. When Swisher returned from paying for fuel, Duff informed him that a blue sedan had pulled into the parking lot and that he thought that Tracy Lewayne Moss was the driver.

*222 During Moss’ hearing on his motion to suppress, Swisher testified that he walked up to Moss, identified himself, and asked permission to search both Moss and the car for drugs. Swisher stated that Moss “advised me he did not mind if I did so.” While Swisher was searching Moss’ person, Holyfield noticed a “brown, hand-rolled marijuana cigarette laying in the ashtray in plain view between the driver’s seat and the front passenger seat of the vehicle.” Gerard Haythe was sitting in the passenger seat. Swisher testified that “[a]t that point Mr. Moss and Mr. Haythe were not free to leave.”

Duff also testified at the hearing on Moss’ motion to suppress, stating that he asked and received permission from Haythe to search his person. All three investigators searched Haythe in the bathroom of the gas station and recovered crack cocaine from his buttocks. Swisher testified that during the search of Haythe, Moss was walking around “back and forth in front of the store on the sidewalk.” After searching Haythe, Swisher began to issue Moss a uniform summons for possession of marijuana. However, Swisher realized that Moss was a juvenile and decided not to release him on a summons. At this point, Duff and Holyfield took Moss to the restroom and conducted a strip search. Swisher stated that they strip searched Moss because he knew from “training and experience that that’s an area the drug dealers often conceal their narcotics because they believe the police will not search that area” and that after finding drugs in that area on Haythe, it was “possible, if not probable that Mr. Moss had narcotics in his buttocks area.” Duff and Holyfield found what they suspected to be crack cocaine in Moss’ buttocks.

At the hearing on Moss’ motion to suppress, Moss argued that he was not under arrest, that the officers had no probable cause to arrest him for possession of marijuana, and that even if they possessed probable cause, the search of his buttocks exceeded the constitutionally permitted scope of a search incident to arrest. The trial judge disagreed, stating, “I don’t think that consent was ever revoked____ But anyway ... I’m going to find this fact: That the police had probable cause to arrest your client [Moss] for possession of marijuana; and *223 they were in the process of doing so when they decided to strip search him.”

After being arrested for possession of cocaine and marijuana, Moss was taken to the Lynchburg Police Department. At trial, Duff testified that Moss was in the interview room when he asked to use the restroom. Instead of coming back into the interview room when he was finished, Moss ran out of the building. Moss was eventually tackled on the sidewalk outside the police station. In a bench trial, Moss was convicted of possession of cocaine and escape from custody.

II. MOTION TO SUPPRESS

On appeal, it is the defendant’s burden to show “that the denial of [the] motion to suppress constitute^] reversible error.” Motley v. Commonwealth, 17 Va.App. 439, 440-41, 437 S.E.2d 232, 233 (1993). “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, 197-98, 487 S.E.2d 259, 261 (1997) (en banc) (citation omitted).

It is beyond peradventure that “probable cause” is a flexible, common sense standard dealing not with technical analysis but rather with practical considerations in the context of the totality of the circumstances. See Texas v. Brown, 460 U.S. 730, 742, 103 S.Ct. 1535, 75 L.Ed.2d 502 (1983); Taylor v. Commonwealth, 222 Va. 816, 820, 284 S.E.2d 833, 836 (1981), cert. denied, 456 U.S. 906, 102 S.Ct. 1753, 72 L.Ed.2d 163 (1982). Additionally, trained and experienced police officers “may be able to perceive and articulate meaning in given conduct which would be! wholly innocent to the untrained observer.” Richards v. Commonwealth, 8 Va.App. 612, 616, 383 S.E.2d 268, 270-71 (1989).

Moss gave Swisher permission to search his person and the vehicle. While Swisher was engaged in a conversation with Moss, Holyfield found what he believed to be a marijuana cigarette or “Philly blunt” in the open ashtray in the dash *224 .board between the driver and the passenger seats. From his training and experience, the officer stated that the packaging was consistent with a type of hand-rolled marijuana cigarette. At that point, the officers had probable cause to arrest Moss and Haythe for possession of marijuana. See Powell v. Commonwealth, 27 Va.App. 173, 177-78, 497 S.E.2d 899, 901-04 (1998); DePriest v. Commonwealth, 4 Va.App. 577, 583-84, 359 S.E.2d 540, 543-44 (1987).

Upon determining that Moss was a juvenile, the officers took him into custody pursuant to Code § 16.1-246. A lawful custodial arrest authorizes a full search of the person. See United States v. Robinson, 414 U.S. 218, 234-35, 94 S.Ct. 467, 38 L.Ed.2d 427 (1973); but see Knowles v. Iowa, 525 U.S. 113, 119 S.Ct. 484, 142 L.Ed.2d 492 (1998). Additionally, Moss had previously given consent to a search of his person. But his consent to search his person and his lawful arrest would not, without more, justify a strip search or a body cavity search.

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Moss v. Commonwealth, 516 S.E.2d 246, 30 Va. App. 219, 1999 Va. App. LEXIS 418 (Va. Ct. App. 1999).

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