Rhodes v. Commonwealth

504 S.E.2d 390, 28 Va. App. 296, 1998 Va. App. LEXIS 483

• Court: Court of Appeals of Virginia
• Decided: September 15, 1998
• Docket: Record No. 1292-97-2
• Status: Published

Opinions

FITZPATRICK, Chief Judge.

This appeal arises from the trial judge’s denial of a motion to suppress evidence obtained during a warrantless search. Curtis Rhodes contends the trial judge erred in holding that a police officer lawfully searched Rhodes incident to issuing him a summons for violating a city ordinance. In view of our recent decision in Lovelace v. Commonwealth, 27 Va.App. 575, 500 S.E.2d 267 (1998), we affirm the trial judge’s refusal to suppress the evidence.

I.

The evidence proved that Rhodes was standing in the front yard of a private residence when Officer Carpenter saw him set a beer bottle on the porch of the residence. After the officer exited his vehicle and made inquiries of Rhodes regarding the beer, Rhodes told the officer he set the beer bottle on the porch “because it was open.” The officer testified that he “placed [Rhodes] in custody” for having an open container of alcohol in public in violation of a city ordinance and that his “intentions were to release [Rhodes] on a summons.” The officer then asked Rhodes if he had any weapons or narcotics on his person. After Rhodes replied that he did not, the officer “patted [Rhodes’] exterior” and felt a small rock in Rhodes’ pants pocket. When the officer asked Rhodes what was in his pocket, Rhodes said he did not know. The officer removed the item from Rhodes’ pocket, examined the chunk of white, rock-like substance, and arrested Rhodes for possession of cocaine.

The trial judge overruled Rhodes’ motion to suppress and convicted Rhodes of possession of cocaine in violation of Code § 18.2-250.

II.

Rhodes contends that Code § 19.2-74(A)(2), which requires a police officer under certain conditions to issue a summons or notice to appear and then “release [the individual] from custody,” does not authorize the officer to make a “custodial arrest.” Therefore, Rhodes contends an officer may not conduct a full search incident to that detention. The Commonwealth contends the officer’s search was lawful as a search incident to arrest.

We recently addressed this precise issue in Lovelace v. Commonwealth, 27 Va.App. 575, 500 S.E.2d 267 (1998). As in this case, a police officer detained Lovelace after the officer saw Lovelace drinking in public from an open container of beer. The officer ordered Lovelace to lie face down on the ground and asked Lovelace if he had any guns or drugs. Id. at 580-81, 500 S.E.2d at 270. When Lovelace did not respond, the officer conducted a patdown search and detected an item in Lovelace’s pocket that felt like a bag. The officer removed the item, which contained cocaine and marijuana, and arrested Lovelace for possession of the controlled substances. Id. at 581, 500 S.E.2d at 270. The trial judge denied the motion to suppress the drugs found in Lovelace’s pocket. Id. at 582, 500 S.E.2d at 270.

In response to Lovelace’s argument that the detention for drinking from an open container of alcohol in violation of Code § 4.1-308 did not authorize the officer to conduct a search incident to arrest, we held that “[t]he existence of probable cause to arrest gave [the officer] constitutional authority to conduct a full search of [the defendant] incident to that arrest.” Lovelace, 27 Va.App. at 583, 500 S.E.2d at 271. In our decision, we addressed Code § 19.2-74(A)(2), which provides the following protocol for issuing the appropriate summons or citation for an offense which carries no penalty of active jail time:

Whenever any person is detained by or is in the custody of an arresting officer for a violation of any county, city, or town ordinance or of any provision of this Code, punishable as a Class 3 or Class 4 misdemeanor or any other misdemeanor for which he cannot receive a jail sentence, ... the arresting officer shall take the name and address of such person and issue a summons or otherwise notify him in writing to appear at a time and place to be specified in such summons or notice. Upon the giving of such person of his written promise to appear at such time and place, the officer shall forthwith release him from custody. However, if any such person shall fail or refuse to discontinue the unlawful act, the officer may proceed according to the provisions of [Code] § 19.2-82.

We ruled that Code § 19.2-74 “does not delimit [an officer’s] constitutional authority to search,” Lovelace, 27 Va.App. at 584, 500 S.E.2d at 271-72, and reasoned as follows:

[T]hat code section contains no language nullifying the officer’s ability to search based on the existence of probable cause. We hold that the existence of probable cause to arrest pursuant to the Constitution is both necessary and sufficient. The Constitution does not require a full custodial arrest to permit a complete search of the arrestee; nor does Code § 19.2-74 impose such a requirement.... [N]othing in Code § 19.2-74 indicates the legislature’s intent to abrogate the authority to search based on probable cause. Finally, even if the legislature did so intend, violation of the statute would not require suppression of evidence obtained in contravention of its terms, absent express provision to the contrary by the legislature.

Lovelace, 27 Va.App. at 584-85, 500 S.E.2d at 272 (citations omitted).

For these reasons, we affirm the trial judge’s denial of Rhodes’ motion to suppress. See Commonwealth v. Burns, 240 Va. 171, 174-75, 395 S.E.2d 456, 457 (1990) (holding that a decision by a panel of this Court is precedent under the rules of stare decisis).

Affirmed.