Murphy v. Commonwealth

559 S.E.2d 890, 37 Va. App. 556, 2002 Va. App. LEXIS 114
CourtCourt of Appeals of Virginia
DecidedFebruary 26, 2002
Docket2626001
StatusPublished
Cited by6 cases

This text of 559 S.E.2d 890 (Murphy v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Virginia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Murphy v. Commonwealth, 559 S.E.2d 890, 37 Va. App. 556, 2002 Va. App. LEXIS 114 (Va. Ct. App. 2002).

Opinion

AGEE, Judge.

Phillip Jerome Murphy (“Murphy” or “the appellant”) was convicted in a Southampton County Circuit Court bench trial of possession of heroin with intent to distribute, second or subsequent offense, in violation of Code § 18.2-250(0, and possession of cocaine with intent to distribute, second offense, in violation of Code § 18.2-248(C). The trial court denied the appellant’s pretrial motion to suppress evidence seized after a cautionary frisk of his person. On appeal, he argues that the weapons frisk was unlawful and any evidence obtained as a result of the frisk should have been suppressed. In the alternative, he argues that if the frisk was lawful, the police exceeded the scope of a pat-down search for weapons by removing an object from his pocket and that the “plain feel” doctrine does not apply. Murphy also contends the police had no lawful basis to remove certain objects from his mouth. We disagree and affirm the judgment of the trial court.

I. Background

On appeal, the appellant bears the burden to establish that denying the motion to suppress was reversible error. The issues of whether a seizure occurred and whether a frisk for weapons was constitutionally valid involve mixed questions of law and fact, which we review de novo on appeal. See McGee v. Commonwealth, 25 Va.App. 193, 197-98, 487 S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. United States, 517 U.S. 690, 699, 116 S.Ct. 1657, 1663, 134 L.Ed.2d 911 (1996)). “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____” Id. at 198, 487 S.E.2d at 261 *561 (citing Ornelas, 517 U.S. at 699, 116 S.Ct. at 1663). We view the evidence in the light most favorable to the prevailing party at trial, the Commonwealth in this instance. See Greene v. Commonwealth, 17 Va.App. 606, 608, 440 S.E.2d 138, 139 (1994).

Viewed in this light, the evidence at the suppression hearing established that on September 21, 1999, Officer Harvey of the Franklin Police Department, along with other officers, executed a search warrant for the “entire residence at 410 Hall Street,” for marijuana, cocaine, heroin, firearms and a “black male named Eric Smith.” The search warrant did not authorize the search of any other individuals found on the premises.

Upon entry to the residence, police found five persons present on the premises. Officer Harvey ordered Murphy, then seated on a couch, to lie on the floor with his arms stretched away from his body. Murphy complied and was subsequently handcuffed, “to ensure that he couldn’t reach anything.” “After the cuffing had occurred a pat-down for [the] safety of [the officers] in the area for weapons was conducted” pursuant to Franklin Police Department practice on the execution of search warrants. Neither Officer Harvey nor any of the other officers knew Murphy, a black male, or Eric Smith.

As Officer Harvey performed the frisk, he detected a bulge in Murphy’s left front pants pocket. He knew “it to be a plastic baggy[,] which is a common way through my training and experience as a law officer that marijuana is packaged.” The officer testified that he believed the bulge to be marijuana, so he retrieved the item. It appeared on inspection to be marijuana, and Murphy was placed under arrest.

After Murphy was arrested, another officer, Sergeant Welch, asked Murphy a question. Murphy replied in a muffled voice. The officers then noticed the appellant “was speaking in an unusual manner as if he had his mouth full of something.” The officers physically forced Murphy to spit the objects out of his mouth. The officers recovered a folded one-dollar bill, seven blue envelope-type packages and ten white *562 rock-like substances. Analysis of the substances disclosed 8.02 grams of cocaine and 0.308 grams of heroin.

II. Analysis

On appeal, Murphy contends Officer Harvey was not entitled to detain him or subject him to a frisk and, therefore, the marijuana evidence was seized in violation of the Fourth Amendment and should have been suppressed. In the alternative, he avers the officer exceeded the scope of a weapons frisk by seizing an object that was clearly not a weapon. For the following reasons, we disagree with Murphy’s contentions and hold he was lawfully detained and frisked and that the subsequent seizure of contraband was also lawful.

A. The Detention

The police officers lawfully detained Murphy, an occupant of a private residence being searched for narcotics and firearms pursuant to a valid search warrant. 1 It is well established that “a warrant to search for contraband founded on probable cause implicitly carries with it the limited authority to detain the occupants of the premises while a proper search is conducted.” Michigan v. Summers, 452 U.S. 692, 705, 101 S.Ct. 2587, 2595, 69 L.Ed.2d 340 (1981) (footnotes omitted). Among the “legitimate law enforcement interest[s]” in detaining the occupants

is the interest in minimizing the risk of harm to the officers ____[T]he execution of a warrant to search for narcotics is the kind of transaction that may give rise to sudden violence or frantic efforts to conceal or destroy evidence. The risk of harm to both the police and the occupants is minimized if the officers routinely exercise unquestioned command of the situation.

Id. at 702-03, 101 S.Ct. at 2594 (citation and footnote omitted). Once Murphy was detained, Officer Harvey was entitled to take reasonable steps under the prevailing circumstances to protect the safety of the officers and everyone else in the *563 house. 2 See generally Welshman v. Commonwealth, 28 Va.App. 20, 502 S.E.2d 122 (1998) (en banc).

B. The Frisk

Murphy was subjected to a frisk for weapons in the interest of the officers’ safety. Whether this action was lawful, in the context of executing a search warrant in a private residence, where the search warrant does not name the individual frisked, is a question of first impression in the Commonwealth. Upon review, we hold that the protective frisk was lawful.

1. Application of the Fourth Amendment

The Fourth Amendment to the United States Constitution provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

See also Va. Const. art.

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Bluebook (online)
559 S.E.2d 890, 37 Va. App. 556, 2002 Va. App. LEXIS 114, Counsel Stack Legal Research, https://law.counselstack.com/opinion/murphy-v-commonwealth-vactapp-2002.