Tuesday 5th 

 December, 2000. 

Anthony Dion Debroux, Appellant, 

 against Record No. 2737-98-1 

 Circuit Court No. 98-539 

Commonwealth of Virginia, Appellee. 

Upon a Rehearing En Banc 

Before Chief Judge Fitzpatrick, Judges Benton, Coleman, Willis, 

Elder, Annunziata, Bumgardner, Frank, Humphreys and Clements 

Jay E. Dugger (McDermott & Roe, on brief), 

 for appellant. 

 Leah A. Darron, Assistant Attorney General 

 (Mark L. Earley, Attorney General, on brief), 

 for appellee. 

 

 

By published opinion dated May 2, 2000, a divided 

panel of this Court affirmed the judgments of the trial court. 

We stayed the mandate of that decision and granted rehearing en

banc. 

 Upon rehearing en banc, it is ordered that the stay of 

the May 2, 2000 mandate is lifted, and the judgments of the 

trial court are affirmed for the reasons set forth in the 

majority panel opinion. 

Judge Elder, joined by Judge Benton, dissents for the 

reasons set forth in the panel dissent. 
-2- 

It is ordered that the trial court allow counsel for 

the appellant an additional fee of $200 for services rendered 

the appellant on the rehearing portion of this appeal, in 

addition to counsel's costs and necessary direct out-of-pocket 

expenses. This amount shall be added to the costs due the 

Commonwealth in the May 2, 2000 mandate. 

This order shall be published and certified to the 

trial court. 

 A Copy, 

 Teste: 

 Cynthia L. McCoy, Clerk 

 By: 

 Deputy Clerk 
-3- 

 Tuesday 27th 

 June, 2000. 

Anthony Dion Debroux, Appellant, 

 against Record No. 2737-98-1 

 Circuit Court No. 98-539 

Commonwealth of Virginia, Appellee. 

Upon a Petition for Rehearing En Banc 

Before Chief Judge Fitzpatrick, Judges Benton, Coleman, Willis, 

Elder, Bray, Annunziata, Bumgardner, Frank and Humphreys 

On May 12, 2000 came the appellant, by court-appointed 

counsel, and filed a petition praying that the Court set aside 

the judgment rendered herein on May 2, 2000, and grant a 

rehearing en banc thereof. 

On consideration whereof, the petition for rehearing 

en banc is granted, the mandate entered herein on May 2, 2000 is 

stayed pending the decision of the Court en banc, and the appeal 

is reinstated on the docket of this Court. 

The parties shall file briefs in compliance with Rule 

5A:35. The appellant shall attach as an addendum to the opening 

brief upon rehearing en banc a copy of the opinion previously 

rendered by the Court in this matter. It is further ordered that 
-4- 

the appellant shall file with the clerk of this Court twelve 

additional copies of the appendix previously filed in this case. 

 A Copy, 

 Teste: 

 Cynthia L. McCoy, Clerk 

 By: 

 

 Deputy Clerk 
-5- 

COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Elder and Lemons∗

Argued at Chesapeake, Virginia 

ANTHONY DION DEBROUX 

 OPINION BY 

v. Record No. 2737-98-1 JUDGE DONALD W. LEMONS 

 MAY 2, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF HAMPTON 

Christopher W. Hutton, Judge 

 Jay E. Dugger (McDermott & Roe, on brief), 

for appellant. 

 Leah A. Darron, Assistant Attorney General 

(Mark L. Earley, Attorney General, on brief), 

for appellee. 

 Anthony Dion Debroux appeals his convictions for possession 

of marijuana and possession of cocaine. On appeal, he contends 

the trial court erroneously concluded that the search of his 

person resulting in the discovery of the drugs did not violate 

the Fourth Amendment. Finding no reversible error, we affirm. 

I. BACKGROUND

 On the evening of September 28, 1997, Sergeants Timothy 

Walker and Robert McMurtrie were employed by American 

International Security and were working as security guards at a 

McDonald's Restaurant. That evening, a woman banged on the door 

 

∗

 Justice Lemons prepared and the Court adopted the opinion in 

this case prior to his investiture as a Justice of the Supreme 

Court of Virginia. 
-6- 

and asked to use the restroom. At the time, the interior of the 

restaurant was closed and the doors were locked, but the 

"drive-thru" remained open. The woman was refused entry and 

left but returned a few minutes later with the same request. 

After this process repeated itself three or four times, Walker 

and McMurtrie and a third security guard went outside and asked 

the woman for identification. The woman said it was in her car. 

As the guards escorted her to her vehicle, Debroux and another 

man exited the vehicle and approached the officers. The woman 

got into her car and remained there. 

 Debroux and his companion were "loud and disorderly," 

"yelling and screaming" profanities, and asked why the guards 

stopped the woman. Debroux had red and glassy eyes, slurred 

speech and an odor of alcohol about his person. He was "a 

little unsteady on his feet" and "didn’t know where he was, [or] 

what was going on." The guards determined that he was slightly 

intoxicated but concluded they lacked the evidence necessary to 

secure a warrant. After Debroux became even more disorderly, 

McMurtrie patted him down for safety. McMurtrie felt a bulge in 

Debroux's right pants pocket and removed the item, which 

included two small bags containing .82 grams of cocaine, two 

bags containing 3.29 grams of marijuana and a folded paper towel 

containing what appeared to be seeds. 

 At trial, Debroux moved to suppress the drugs. Debroux 

contended that the security guards admitted they were registered 
-7- 

with the state and were, therefore, governmental actors. He 

also argued that the officers admitted they lacked probable 

cause and, even if McMurtrie was justified in patting down 

Debroux for weapons, he could not identify the bulge as a weapon 

and should not have removed it from Debroux's pocket. 

 The Commonwealth's attorney did not argue the state action 

issue but, rather, claimed that probable cause existed for an 

arrest for disorderly conduct or obstruction of justice and 

public intoxication and that the guards were entitled to conduct 

a full search incident to arrest. 

 A review of the record indicates that Walker was registered 

with the Commonwealth pursuant to Code § 9-183.3. There is no 

evidence that McMurtrie, who conducted the search, was so 

registered. 

 The trial court denied the motion to suppress and stated: 

Based upon [Debroux's] actions in terms of 

being disorderly, I think the officers had 

the appropriate right and responsibility to 

conduct a pat down. While there was some 

question as to the definition of the item 

found, I do not think that the officers' 

action in searching was unreasonable. I 

think it was justified by the case law. 

Debroux entered a plea of guilty but reserved his right to 

appeal the denial of the suppression motion. 
-8- 

II. STATE ACTION

 The Fourth Amendment is violated where an unreasonable 

search is conducted by state actors. See Mapp v. Ohio, 367 U.S. 

643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961). "Evidence 

obtained in violation of the Fourth Amendment is inadmissible in 

a criminal prosecution for a charged criminal violation 

pertaining to the seized evidence." Anderson v. Commonwealth, 

20 Va. App. 361, 363, 457 S.E.2d 396, 397 (1995), aff’d 251 Va. 

437, 470 S.E.2d 862 (1996). In Duarte v. Commonwealth, 12 Va. 

App. 1023, 1025, 407 S.E.2d 41, 42 (1991), we stated, 

"[T]he rule which excludes the evidence 

obtained by unlawful search because in 

violation of the Fourth Amendment does not 

apply where the unlawful search was made by 

a private individual acting on his own 

initiative." Harmon v. Commonwealth, 209 

Va. 574, 577, 166 S.E.2d 232, 234 (1969). 

Thus, fourth amendment protections against 

unreasonable searches and seizures are 

"wholly inapplicable 'to a search or 

seizure, even an unreasonable one, effected 

by a private individual not acting as an 

agent of the government or with the 

participation or knowledge of any 

governmental official.'" United States v. 

Jacobsen, 466 U.S. 109, 113[-14, 104 S. Ct. 

1652, 1656, 80 L. Ed. 2d 85] (1984) (quoting 

Walter v. United States, 447 U.S. 649, 662[, 

100 S. Ct. 2395, 2404, 65 L. Ed. 2d 410] 

(1980); See Skinner v. Railway Labor Exec. 

Ass'n, 489 U.S. 602[, 109 S. Ct. 1402, 103 

L. Ed. 2d 639] (1989). 

Whether government action is implicated "necessarily turns on 

the degree of the Government's participation in the private 

party's activities, a question that can only be resolved 'in 

light of all the circumstances.'" Id. at 1026, 407 S.E.2d at 42 
-9- 

(quoting Skinner, 489 U.S. at 613-14, 109 S. Ct. at 1411). 

"[T]o exclude evidence based on a fourth amendment violation, a 

defendant must demonstrate the contested search or seizure was 

conducted by an officer of the government or someone acting at 

the government's direction rather than a private individual 

acting on his own initiative." Duarte, 12 Va. App. at 1025, 407 

S.E.2d at 42; See 5 W. LaFave, Search and Seizure § 11.2(b), at 

37 (3d ed. 1996). The general rule is that private security 

guards registered with the state pursuant to Code § 9-183.3 are 

not, on that basis alone, state actors. See, e.g., Coston v. 

Commonwealth, 29 Va. App. 350, 353, 512 S.E.2d 158, 160 (1999). 

 On appeal from a trial court's denial of a motion to 

suppress, we must review the evidence in the light most 

favorable to the Commonwealth, granting to the Commonwealth all 

reasonable inferences fairly deducible from it. Commonwealth v. 

Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). 

The findings of the trial court will not be disturbed unless 

plainly wrong or without evidence to support them. See Mier v. 

Commonwealth, 12 Va. App. 827, 828, 407 S.E.2d 342, 343 (1991). 

When reviewing the trial court's denial of a defendant's motion 

to suppress evidence, "[t]he burden is upon [the defendant] to 

show that th[e] ruling, when the evidence is considered most 

favorably to the Commonwealth, constituted reversible error." 

McGee v. Commonwealth, 25 Va. App. 193, 197, 487 S.E.2d 259, 261 

(1997) (en banc) (quotation marks and citations omitted). 
-10- 

 At Debroux's suppression hearing, the initial burden was on 

Debroux to establish that a search was conducted by state 

actors. See, e.g., Mills v. Commonwealth, 14 Va. App. 459, 464, 

418 S.E.2d 718, 720 (1992) ("'[I]t is the movant's burden to 

establish by a preponderance of the evidence that the private 

party acted as a government instrument or agent' . . . ."); 

Duarte, 12 Va. App. at 1025, 407 S.E.2d at 42. After the burden 

of going forward with the evidence has been met by a 

preponderance of the evidence, the burden shifts to the 

Commonwealth to establish that the search and seizure were 

constitutionally permissible. See, e.g., Mills, 14 Va. App. at 

464, 418 S.E.2d at 720. 

 The Commonwealth could prevail on the motion to suppress by 

defeating a claim of state action or by proving an exception to 

the warrant requirement for a search. Here, the Commonwealth 

argued that the search was permissible as an exception to the 

warrant requirement. The trial court did not address the issue 

of state action. 

 In Driscoll v. Commonwealth, 14 Va. App. 449, 417 S.E.2d 

312 (1992), we recognized that "[a]n appellate court may affirm 

the judgment of a trial court when it has reached the right 

result for the wrong reason." Id. at 452, 417 S.E.2d at 313. 

We also noted that the "right result, wrong reason" rule does 

not apply where "the correct reason for affirming the trial 

court was not raised in any manner at trial" and "where, because 
-11- 

the trial court has rejected the right reason or confined its 

decision to a specific ground, further factual resolution is 

needed before the right reason may be assigned to support the 

trial court's decision." Id. at 452, 417 S.E.2d at 313-14. On 

appeal, we may affirm on grounds different from those on which 

the trial court based its decision so long as the issue was 

addressed at trial, evidence exists in the record to support 

those alternate grounds, the trial judge's decision does not 

reject those grounds, and no further factual resolution is 

necessary to support the decision. See Driscoll, 14 Va. App. at 

452, 417 S.E.2d at 314; see, e.g., Thims v. Commonwealth, 218 

Va. 85, 235 S.E.2d 443 (1977) (despite the trial court's failure 

to specifically find exigent circumstances, the Supreme Court of 

Virginia held in the alternative that those circumstances 

existed and that the challenged search was lawful). 

 In this case, as in Driscoll, there is no conflicting 

evidence with respect to the state action issue. In fact, the 

evidence in this record clearly supports a finding that there 

was no state action. The record indicates that Debroux was 

detained by privately employed security guards, one of whom was 

registered with the Commonwealth pursuant to Code § 9-183.3. 

The evidence does not show that the security guard who searched 

Debroux was registered. Debroux offered no evidence that the 

guards acted under government direction or that the government 

participated in their activities. Walker and McMurtrie were 
-12- 

privately employed to patrol the McDonald's Restaurant, and 

their duty was to serve the restaurant and protect its 

interests. They were not police officers. No evidence proved 

that any law enforcement agencies knew about or exercised any 

power or control over their actions on the night in question. 

"While it was [McDonald's] policy to invoke the protection of 

the law and the police to vindicate its rights through public 

process, the duty of its agents did not necessarily require 

police involvement or criminal prosecution. The cooperation 

which those agents gave to the police was merely coincident to 

the performance of their private duties." Mier, 12 Va. App. at 

833, 407 S.E.2d at 346 (citations omitted). 

 From the initial contact with Debroux until the subsequent 

arrest and disputed search and seizure, the evidence showed that 

the security guards were acting pursuant only to their private 

employment, conduct which presents no Fourth Amendment issues. 

See, e.g., United States v. Francoeur, 547 F.2d 891, 893 (5th 

Cir.), cert. denied, 431 U.S. 932 (1977); Coston, 29 Va. App. at 

353, 512 S.E.2d at 160; Mier, 12 Va. App. at 833, 407 S.E.2d at 

346; Duarte, 12 Va. App. at 1025, 407 S.E.2d at 42. 

 This case is distinguished from Johnson v. Commonwealth, 26 

Va. App. 674, 496 S.E.2d 143 (1998), in one important respect. 

In Johnson we observed, 

[b]ased on the parties' representations and 

its own review of the relevant legal 

principles, the trial court held that the 

[Virginia Marine Resources Commission] had 
-13- 

no administrative authority to conduct a 

warrantless inspection or search of the 

premises for untagged striped bass. 

Id. at 681, 496 S.E.2d at 146. Because the Commonwealth 

conceded the issue at trial and the trial judge decided the 

issue accordingly, the Commonwealth was barred from raising the 

issue on appeal. We said, 

[i]n this case, the Commonwealth's attorney 

conceded in the trial court that "there is 

no regulatory scheme under Burger" that 

would permit application of the 

administrative search exception to the 

warrant requirement. The trial court 

agreed. Therefore, the Commonwealth is 

barred from asserting the exception as a 

basis for affirmance on appeal. See, e.g., 

Manns v. Commonwealth, 13 Va. App. 677, 

679-80, 414 S.E.2d 613, 615 (1992) (holding 

that a party, "having agreed upon the action 

taken by the trial court, should not be 

allowed to assume an inconsistent position") 

(quoting Clark v. Commonwealth, 220 Va. 201, 

214, 257 S.E.2d 784, 792 (1979)). 

Johnson, 26 Va. App. at 683, 496 S.E.2d at 147. 

 Here, the Commonwealth did not concede the issue of state 

action, nor did the trial judge decide the issue. The 

Commonwealth's position and the trial court's decision were not 

unlike the reasoning in many cases where the decision-maker 

bypasses an issue because the case can be resolved without 

addressing it. Often, appellate courts will preface such 

reasoning by stating, "assuming without deciding." The record 

does not reveal a concession by the Commonwealth, nor does it 

reveal that the issue of state action was decided by the trial 

court. 
-14- 

 This case also is distinguished from Moore v. Commonwealth, 

14 Va. App. 198, 415 S.E.2d 247 (1992), cited by the dissent. 

In Moore, an appeal of a conviction for driving after having 

been declared an habitual offender, the Commonwealth on appeal 

asserted that Moore's double jeopardy argument was procedurally 

defaulted because he did not offer proof at trial of his prior 

convictions for reckless driving, failing to stop and attempting 

to elude a police officer. We observed, "the Commonwealth 

conceded that appellant had 'been tried' on the prior 'crimes.'" 

Id. at 200, 415 S.E.2d at 248. 

 The existence of prior "crimes" is a necessary element of 

double jeopardy analysis, and the record in Moore clearly 

supported our conclusion that the Commonwealth conceded the 

matter at trial. By contrast, the issue whether the officers 

were state actors did not have to be decided because the trial 

judge decided the case on alternative grounds. 

 Concluding that Debroux did not establish by preponderance 

of the evidence that state action was involved, it is 

unnecessary to address the merits of the Fourth Amendment claim. 
-15- 

Accordingly, we hold that the trial court did not err in denying 

the motion to suppress. The convictions are affirmed. 

 Affirmed.
-16- 

Elder, J., dissenting. 

 I believe the majority errs in concluding that the issue of 

whether Walker and McMurtrie were state actors may serve as a 

basis for affirmance on appeal. Therefore, I respectfully 

dissent. Because I disagree on this issue, I would consider the 

reasonableness of the search and would conclude that a remand 

for additional findings of fact on this issue is required. 

A. 

GOVERNMENT ACTION 

 I agree with the majority's assertion that "in order to 

exclude evidence based on a Fourth Amendment violation, a 

defendant must demonstrate the contested search or seizure was 

conducted by an officer of the government or someone acting at 

the government's direction." Duarte v. Commonwealth, 12 Va. 

App. 1023, 1025, 407 S.E.2d 41, 42 (1991). "'[I]t is the 

movant's burden to establish by a preponderance of the evidence 

that the private party acted as a government instrument or 

agent' . . . ." Mills v. Commonwealth, 14 Va. App. 459, 464, 

418 S.E.2d 718, 720 (1992) (quoting United States v. Feffer, 831 

F.2d 734, 739 (7th Cir. 1987)). Whether government action is 

implicated turns on the degree of the government's 

"'participation in the private party's activities,'" Duarte, 12 

Va. App. at 1026, 407 S.E.2d at 42 (quoting Skinner v. Railway 

Labor Exec. Ass'n, 489 U.S. 602, 614-15, 109 S. Ct. 1402, 1411, 

103 L. Ed. 2d 639 (1989)), and is a question of fact to be 
-17- 

decided under the circumstances of each case, see Mills, 14 Va. 

App. at 463-64, 418 S.E.2d at 720.1

 The majority concludes that "the Commonwealth did not 

concede the issue of state action" and "the trial judge [did 

not] decide the issue." I do not believe the majority's 

conclusions are supported by the record. Whether Walker and 

McMurtrie were state actors was a threshold issue which had to 

be resolved before the trial court could address the existence 

of probable cause or reasonable suspicion. Appellant expressly 

argued to the trial court that Walker and McMurtrie were state 

 

1

 In deciding in Mills that whether a private person is a 

government agent for purposes of the Fourth Amendment is a 

question of fact, we relied on two cases decided by the Court of 

Appeals for the Seventh Circuit. See Mills, 14 Va. App. at 

463-64, 418 S.E.2d at 720 (citing United States v. Koenig, 856 

F.2d 843, 849 (7th Cir. 1988); Feffer, 831 F.2d at 739). After 

our decision in Mills, the Seventh Circuit noted that "the 

ultimate question whether a private person is actually a 

government agent" is "a question that requires the application 

of a legal concept (agency) to facts" and "may, after Ornelas v. 

United States, 517 U.S. 690, 116 S. Ct. 1657, 134 L. Ed. 2d 911 

(1996), be subject to plenary review by the court of appeals." 

United States v. Martin, 195 F.3d 961, 963 (7th Cir. 1999). The 

Seventh Circuit also noted, however, that even under Ornelas, 

"the determination of the underlying facts remains subject to 

the clear-error rule." Id.; see McGee v. Commonwealth, 25 Va. 

App. 193, 198 n.1, 487 S.E.2d 259, 261 n.1 (1997) (en banc) 

(noting, under Virginia law, that an appellate court is "bound 

by the trial court's findings of historical fact unless 'plainly 

wrong'" rather than clearly erroneous). 

 Because the United States Supreme Court's decision in Ornelas

dealt expressly only with the standard for review of probable 

cause and reasonable suspicion determinations, Ornelas is not 

binding upon us in our review of Fourth Amendment agency issues. 

See Ornelas, 517 U.S. at 699, 116 S. Ct. at 1659. Although the 

Seventh Circuit's decision in Martin could be viewed as holding 

that the agency issue is a mixed question of law and fact, our 

decision in Mills remains binding on us unless altered by the 

Virginia Supreme Court or this Court sitting en banc. 
-18- 

actors, and the Commonwealth's attorney did not contend 

otherwise. In fact, he referred to them as "officers" and made 

no mention of their status. He simply argued that they had 

either probable cause to arrest or reasonable suspicion for a 

weapons frisk, thus justifying discovery of the drugs. Whether 

Walker and McMurtrie had probable cause or reasonable suspicion 

would have been irrelevant if they were not state actors. 

Therefore, I would hold the Commonwealth implicitly conceded 

that Walker and McMurtrie were state actors.2 Further, by 

holding that "the officers had the appropriate right and 

responsibility to conduct a pat down," the trial court also 

implicitly found that the guards were state actors. 

 We reached a similar conclusion in Moore v. Commonwealth, 

14 Va. App. 198, 200, 415 S.E.2d 247, 249 (1992). In Moore, the 

accused was convicted for driving after having been declared an 

habitual offender, over his claim that the conviction violated 

the double jeopardy prohibition based on his prior conviction 

for two misdemeanors arising out of the same act of driving. 

See id. at 199, 415 S.E.2d at 248. He appealed, and the 

Commonwealth argued that his claim was procedurally barred 

 

2

 This approach does not involve the application of Rule 5A:18, 

which provides that "[n]o ruling of the trial court . . . will 

be considered as a basis for reversal unless the objection was 

stated with the grounds therefor at the time of the ruling, 

except for good cause shown or to enable the Court of Appeals to 

attain the ends of justice." Rule 5A:18 expressly applies to an 

appellee only where the appellee asserts an error that seeks to 

reverse a judgment. Here, the Commonwealth raised the state 

actor issue as an alternative ground for affirmance of the 
-19- 

because he never introduced evidence to prove his prior 

misdemeanor convictions. See id. at 199-200, 415 S.E.2d at 248. 

We held that although the Commonwealth did not make "an express 

concession of [the accused's] misdemeanor convictions[,] . . . 

the clear import of the Commonwealth's position" in arguing that 

the convictions were not lesser-included offenses was that the 

convictions did, in fact, exist. Id. at 200, 415 S.E.2d at 249. 

We held that the Commonwealth, "'[h]aving conceded the matter 

before the trial judge, . . . [was] bound by its concession and 

[was] not entitled to raise this issue for the first time on 

appeal.'" Id. (quoting Low v. Commonwealth, 11 Va. App. 48, 51, 

396 S.E.2d 383, 384 (1990)); see also Clark v. Commonwealth, 220 

Va. 201, 214, 257 S.E.2d 784, 792 (1979) ("[A party], having 

agreed upon the action taken by the trial court, should not be 

allowed to assume an inconsistent position."). 

 Here, as in Moore, the accused had the burden of proving 

certain predicate facts, and the Commonwealth implicitly 

conceded the existence of those facts.3 Further, in reaching the 

 

conviction. 

3

 Under Mills, whether the guards were state actors was a factual 

determination. However, I would reach the same result if the 

determination constituted a pure question of law or a mixed 

question of law and fact. Where a trial court rules on a legal 

issue and that ruling is unchallenged, it becomes "the law of 

the case and is binding on the parties and this court." Miles 

v. Commonwealth, 205 Va. 462, 468, 138 S.E.2d 22, 27 (1964); see

Correll v. Commonwealth, 232 Va. 454, 460 n.1, 352 S.E.2d 352, 

355 n.1 (1987) (upholding as "the law of the case" trial court's 

exclusion of defendant's statements where court ruled at 

pretrial suppression hearing that statements were admissible but 

said at trial, without objection, that it had ruled the 
-20- 

issue of the reasonableness of the search, the trial court 

implicitly ruled on the state actor issue. The majority 

effectively ignores our decision in Moore, which remains binding 

on a panel of this Court until overturned by the Virginia 

Supreme Court or this Court sitting en banc. As Moore makes 

clear, it matters not that the Commonwealth's concession and the 

trial court's determination were implicit rather than explicit, 

as in Johnson v. Commonwealth, 26 Va. App. 674, 496 S.E.2d 143 

(1998). 

 The majority's application of the "right result for the 

wrong reason" rule is misplaced. See Driscoll v. Commonwealth, 

14 Va. App. 449, 417 S.E.2d 312 (1992). That principle permits 

affirmance of a conviction on grounds different from those 

relied on by the trial court if the alternate ground for 

affirmance was raised in the trial court, evidence exists in the 

record to support the alternate ground, the trial judge's 

decision does not reject those grounds, and no further factual 

resolution is necessary to support the decision. See id. at 

452, 417 S.E.2d at 314. Here, as detailed more fully above, the 

trial judge's ruling on the merits of the Fourth Amendment issue 

constituted a rejection of the argument that Walker and 

McMurtrie were not state actors. 

 Further, even if I were to agree with the majority that the 

trial court did not rule implicitly on the state actor issue, I 

 

statements were inadmissible). 
-21- 

nevertheless would conclude that further factual resolution 

would have been necessary, thereby preventing us from affirming 

on these grounds. Under Mills, 14 Va. App. at 463-64, 418 

S.E.2d at 720, whether Walker and McMurtrie were state actors is 

a question of fact. Contrary to the majority's assertion, our 

ruling in Coston v. Commonwealth, 29 Va. App. 350, 512 S.E.2d 

158 (1999), does not compel a different result under the facts 

of this case. Although we noted in Coston that a private 

security guard ordinarily is not a "public actor or public 

employee for most purposes," we reached a contrary result in 

that case. Id. at 352-53, 512 S.E.2d at 159-60. We held that a 

private security guard who issued a summons for trespassing was 

a state actor for purposes of punishing the forgery of the 

trespasser in executing the summons. See id. We did not 

purport in Coston to hold that all other acts by private 

security guards do not constitute state action. Rather, such a 

determination requires factual findings which should be made by 

the trial court in the first instance. 

 For these reasons, I respectfully dissent from the decision 

of the majority and would reach the trial court's ruling on the 

reasonableness of the search.

 
-22- 

 B. 

REASONABLENESS OF SEARCH 

 Police-citizen encounters which implicate the Fourth 

Amendment fall into one of two categories. First, police may 

engage in "brief investigatory stops, commonly referred to as 

'Terry' stops, which must be based upon reasonable, articulable 

suspicion that criminal activity is or may be afoot." McGee v. 

Commonwealth, 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) 

(en banc) (quoting United States v. Sokolow, 490 U.S. 1, 7, 109 

S. Ct. 1581, 1585, 104 L. Ed. 2d 1 (1989)). Second, they may 

effect "'highly intrusive, full-scale arrests' or searches[,] 

which must be based upon probable cause to believe that a crime 

has been committed by the suspect." Id. (quoting Sokolow, 490 

U.S. at 7, 109 S. Ct. at 1585). 

 In the course of a Terry stop, the officer may conduct a 

limited frisk of the suspect's outer clothing for weapons if the 

officer "reasonably believes, based on specific and articulable 

facts, that the suspect might be armed and dangerous. If, 

during the pat-down search, the police officer feels an object 

that he reasonably believes could be a dangerous weapon, the 

officer may seize the object from the suspect's person." 

Phillips v. Commonwealth, 17 Va. App. 27, 30, 434 S.E.2d 918, 

920 (1993) (citations omitted). 

If a police officer lawfully pats down a 

suspect's outer clothing and feels an object 

[other than a weapon] whose contour or mass 

makes its identity immediately apparent, 
-23- 

there has been no invasion of the suspect's 

privacy beyond that already authorized by 

the officer’s search for weapons; if the 

object is contraband, its warrantless 

seizure would be justified by the same 

practical considerations that inhere in the 

plain-view context. 

Minnesota v. Dickerson, 508 U.S. 366, 375-76, 113 S. Ct. 2130, 

2137, 124 L. Ed. 2d 334 (1993) (emphasis added). However, where 

the character of the item detected is not immediately apparent 

and the officer makes "no claim that he suspected [the] object 

to be a weapon," he may not investigate further. Id. at 377-78, 

113 S. Ct. at 2138-39. Further "exploration . . . [is] 

unrelated to '[t]he sole justification of the search [under 

Terry:] . . . the protection of the police officer and others 

nearby.'" Id. at 378, 113 S. Ct. at 2138-39 (quoting Terry v. 

Ohio, 392 U.S. 1, 29, 88 S. Ct. 1868, 1884, 20 L. Ed. 2d 889 

(1968)). 

 Here, the evidence, viewed in the light most favorable to 

the Commonwealth, the party prevailing below, supports the trial 

court's finding that the officers had an objectively reasonable 

suspicion of criminal activity sufficient to detain appellant 

briefly for further investigation. The evidence establishes 

that appellant and his companion were "loud and disorderly," 

"yelling and screaming" profanities, and that appellant 

exhibited signs of intoxication--he "didn't know where he was, 

what was going on," his eyes were red and glassy, his speech was 

slurred, he had alcohol on his breath, and he was unsteady on 
-24- 

his feet. Assuming without deciding that these circumstances 

gave the officers reason to believe appellant might be armed and 

dangerous, nevertheless, Sergeant McMurtrie's frisk of appellant 

exceeded the limits set out in Dickerson. McMurtrie testified 

that he felt "a little bulge," which "wasn't solid or anything," 

and that he "wasn't too sure what it was." McMurtrie did not 

testify that he believed the item to be a weapon, nor did he 

testify that the character of the item was immediately apparent 

to him after patting it. As a result, he was not permitted to 

investigate further. Therefore, the trial court erred in 

concluding that McMurtrie's discovery of the contraband was 

within the scope of a reasonable search for weapons. 

 The Commonwealth urges us, in the alternative, to apply the 

principle that permits affirmance of the trial court's ruling if 

it reached the "right [result] for the wrong reason." Driscoll, 

14 Va. App. at 452, 417 S.E.2d at 313. It contends the officers 

had probable cause to arrest appellant for disorderly conduct 

pursuant to Code § 18.2-415 and were entitled to search him 

incident to that arrest. 

 Settled legal principles provide that an officer who makes 

a custodial arrest based on probable cause properly may search 

the arrestee pursuant to that custodial arrest. See United 

States v. Robinson, 414 U.S. 218, 235, 94 S. Ct. 467, 477, 38 

L. Ed. 2d 427 (1973). "Probable cause to arrest must exist 

exclusive of the incident search. [However,] [s]o long as 
-25- 

probable cause to arrest exists at the time of the search, . . . 

it is unimportant that the search preceded the formal arrest if 

the arrest 'followed quickly on the heels of the challenged 

search.'" Carter v. Commonwealth, 9 Va. App. 310, 312, 387 

S.E.2d 505, 506-07 (1990) (quoting Rawlings v. Kentucky, 448 

U.S. 98, 111, 100 S. Ct. 2556, 2564, 65 L. Ed. 2d 633 (1980)) 

(other citation omitted). 

 "[T]he test of constitutional validity [of a warrantless 

arrest and incidental search] is whether . . . the arresting 

officer had knowledge of sufficient facts and circumstances to 

warrant a reasonable man in believing that an offense has been 

committed." Bryson v. Commonwealth, 211 Va. 85, 86-87, 175 

S.E.2d 248, 250 (1970). To establish probable cause, the 

Commonwealth must show "'a probability or substantial chance of 

criminal activity, not an actual showing'" that a crime was 

committed. Ford v. City of Newport News, 23 Va. App. 137, 

143-44, 474 S.E.2d 848, 851 (1996) (quoting Illinois v. Gates, 

462 U.S. 213, 243 n.13, 103 S. Ct. 2317, 2335 n.13, 76 L. Ed. 2d 

527 (1983)). Ordinarily, the Fourth Amendment requires only 

that an objectively reasonable basis exist for a search. See, 

e.g., Whren v. United States, 517 U.S. 806, 812-13, 116 S. Ct. 

1769, 1774, 135 L. Ed. 2d 89 (1996). "'[T]hat the officer does 

not have the state of mind which is hypothecated by the reasons 

which provide the legal justification for the officer's action 

does not invalidate the action taken as long as [all] the 
-26- 

circumstances, viewed objectively, justify that action.'" Id.

at 813, 116 S. Ct. at 1774 (quoting Scott v. United States, 436 

U.S. 128, 138, 98 S. Ct. 1717, 1723, 56 L. Ed. 2d 168 (1978)). 

 Here, viewing the evidence in the light most favorable to 

the Commonwealth, the officers had probable cause to arrest 

appellant for public intoxication pursuant to Code § 18.2-388 or 

disorderly conduct pursuant to Code § 18.2-415, thereby 

justifying a full search of his person incident to arrest.4 As 

set out above, the evidence, viewed in the light most favorable 

to the Commonwealth, establishes that appellant and his 

companion were "loud and disorderly," "yelling and screaming" 

profanities, and that appellant exhibited signs of 

intoxication--he "didn't know where he was, what was going on," 

his eyes were red and glassy, his speech was slurred, he had 

alcohol on his breath, and he was unsteady on his feet. 

 Code § 19.2-74 provides that an arresting officer who has 

custody of a person for certain misdemeanor offenses, including 

disorderly conduct, ordinarily shall issue the person a summons 

and, upon his written promise to appear in compliance with the 

summons, shall release that person from custody. However, that 

code section, in conjunction with Code § 19.2-82, permits an 

officer to effect a custodial arrest and take the arrestee 

 

4

 Appellant has not raised the issue of whether or to what extent 

the authority of a registered security guard is subject to 

limitations not imposed on traditional law enforcement officers. 

Therefore, I analyze the guards' actions in detaining and 

searching appellant as if they had the full power of arrest 
-27- 

before a magistrate under certain circumstances, such as when 

the detainee fails or refuses to discontinue the unlawful act, 

see Code § 19.2-74(A)(1), (2); Lovelace v. Commonwealth, 258 Va. 

588, 596, 522 S.E.2d 856, 860 (1999), or when the arresting 

officer reasonably believes the detainee is likely to harm 

himself or others, see Code § 19.2-74(A)(1). That code section 

specifically excludes from its coverage, inter alia, "the 

offense of public drunkenness as defined in § 18.2-388." See

Code § 19.2-74(A)(2). 

1. 

DISORDERLY CONDUCT 

 The Commonwealth contends that the officers had probable 

cause to arrest appellant for disorderly conduct and were 

entitled to search him pursuant to that arrest. Under the facts 

in this case, viewed in the light most favorable to the 

Commonwealth, appellant committed the offense of disorderly 

conduct and, according to Sergeant McMurtrie, appellant failed 

to discontinue his disorderly conduct when the officers detained 

him pursuant to their investigation. Therefore, the evidence 

provided an objectively reasonable basis for a custodial arrest. 

Although the officers would have been entitled to conduct a full 

search incident to a lawful custodial arrest, the evidence does 

not support a finding that they made such an arrest. Further, 

they were not required to do so. Although Code § 19.2-74 

 

given by the code to traditional law enforcement officers. 
-28- 

permitted an arrest based on appellant's failure or refusal to 

discontinue his disorderly conduct, this provision is 

discretionary and does not require the officer to effect a full 

custodial arrest. See Code § 19.2-74(A)(1) ("[I]f any such 

person shall fail or refuse to discontinue the unlawful act, the 

officer may proceed according to the provisions of § 19.2-82," 

which permits an officer to effect a warrantless custodial 

arrest. (emphasis added)). Where an officer merely issues a 

summons or citation, he may not conduct a search incident to 

issuance of the citation, even if the law permits a full 

custodial arrest for the cited offense, in the absence of 

evidence of a need to disarm the person or preserve evidence of 

the violation for which the citation was issued. See Lovelace, 

258 Va. at 594, 522 S.E.2d at 859 (citing Knowles v. Iowa, 525 

U.S. 113, 115-18, 119 S. Ct. 484, 486-88, 142 L. Ed. 2d 492 

(1998)); see also Rhodes v. Commonwealth, 29 Va. App. 641, 645, 

513 S.E.2d 904, 906 (1999) (en banc). 

 Although Fourth Amendment analysis ordinarily involves an 

evaluation of the objective reasonableness of a search or 

seizure, see, e.g., Whren, 517 U.S. at 812-13, 116 S. Ct. at 

1774, the United States Supreme Court's decision in Knowles v. 

Iowa instructs that subjective intentions control the analysis 

of whether a full search was reasonable under the facts of this 

case, 525 U.S. at 117-18, 119 S. Ct. at 487-88; see also

Lovelace, 258 Va. at 595-96, 522 S.E.2d at 859-60. Where an 
-29- 

officer issues a summons in lieu of effecting a custodial arrest 

and then conducts a full search based only on the "search 

incident to arrest" rationale, as the officer in Knowles did, 

the officer's subjective intent is clear from his completed 

actions. See Knowles, 525 U.S. at 114, 119 S. Ct. at 486 

(involving search of defendant's car as incident to arrest under 

statute permitting such a search upon issuance of a citation). 

Under those circumstances, without more, the Fourth Amendment 

does not permit a full search. See id. at 117-18, 119 S. Ct. at 

487-88. Where the officer conducts a full search prior to 

either releasing the accused on a summons or effecting a full 

custodial arrest, his intent may not be clear. Under these 

circumstances, the mere presence of probable cause to effect a 

full custodial arrest is insufficient to permit the search. See

Lovelace, 258 Va. at 594-96, 522 S.E.2d at 858-60 (involving 

search of defendant's person during detention for open-container 

offense). In Lovelace, in responding to an argument that 

probable cause to arrest is, in fact, sufficient to permit a 

full search, the Virginia Supreme Court held as follows: 

The fact that the officers could have issued 

only a summons for the [particular] offense 

. . . negates the Commonwealth's argument 

that the existence of probable cause to 

charge [the accused] with [that particular 

offense] allowed [the officer] to search 

him. After Knowles, an "arrest" that is 

effected by issuing a citation or summons 

rather than taking the suspect into custody 

does not, by itself, justify a full 

field-type search. 
-30- 

Id. at 596, 522 S.E.2d at 860 (emphasis added).5

 Based on these principles, a full search of appellant was 

not reasonable unless (1) the officers effected or intended to 

effect a full custodial arrest for disorderly conduct prior to 

undertaking the search or (2) the Commonwealth offered evidence 

of a "need to disarm [appellant]," beyond the need satisfied by 

a pat-down search, or a need to "preserve any evidence for the 

[disorderly conduct] violation." Rhodes, 29 Va. App. at 645, 

513 S.E.2d at 906; see Lovelace, 258 Va. at 593-94, 522 S.E.2d 

at 858. 

 Here, the trial court did not expressly consider the 

probable cause issue and made no finding that either officer 

intended to make a full custodial arrest for disorderly conduct 

 

5

 In Lovelace, the Court acknowledged that the officer could have 

effected a custodial arrest if Lovelace had failed or refused to 

discontinue the unlawful act, but it said there was no evidence 

in the record that Lovelace acted in such a manner. See 258 Va. 

at 596, 522 S.E.2d at 860. Appellant's case is distinguishable 

because the evidence would support a finding that appellant 

refused to discontinue the unlawful act. However, this is a 

distinction without a difference because, as discussed in the 

text, infra, the trial court made no finding on this issue and, 

even if it had, the officers still were not compelled to effect 

a custodial arrest. Code § 19.2-74(A)(1) states merely that if 

the "person shall fail or refuse to discontinue the unlawful 

act, the officer may proceed according to the provisions of Code 

§ 19.2-82." (Emphasis added). Because the officers could still 

have decided only to issue a summons and did not testify that 

they intended to effect a full custodial arrest prior to 

conducting the full search, the rationale of Knowles and 

Lovelace is applicable. 
-31- 

or any other offense. See Driscoll, 14 Va. App. at 452, 417 

S.E.2d at 314 (noting that appellate court may not affirm 

conviction under "right [result] for the wrong reason" rationale 

in "those cases where, because the trial court has . . . 

confined its decision to a specific ground, further factual 

resolution is needed"). Further, even viewed in the light most 

favorable to the Commonwealth, the evidence does not support 

such a finding. McMurtrie said he initially detained appellant 

for being disorderly and then placed him in custody when he 

became even more disorderly. However, McMurtrie never testified 

that he effected or intended to effect a custodial arrest. Code 

§ 19.2-74, which allows release of certain misdemeanants on a 

summons, uses the terms "detention" and "custody" 

interchangeably and does not permit the inference that placing a 

misdemeanant "in custody" is synonymous with effecting a 

custodial arrest. See also Lovelace, 258 Va. at 596, 522 S.E.2d 

at 860. Therefore, the evidence does not permit a finding that 

McMurtrie intended to effect a custodial arrest. 

 Finally, the Commonwealth offered no evidence of a "need to 

disarm [appellant]," beyond the need satisfied by the pat-down 

search, and no evidence of a need to "preserve any evidence for 

the [disorderly conduct] violation." Rhodes, 29 Va. App. at 

645, 513 S.E.2d at 906; see also Lovelace, 258 Va. at 596-97, 

522 S.E.2d at 860 (noting that where officer conducting pat-down 

"felt nothing similar to a weapon" and "did not testify that he 
-32- 

felt something that was evidence related to [the charged offense 

of] drinking an alcoholic beverage in public," officer "did not 

'reasonably believe' that the bag was either a weapon or 

evidence related to [defendant's] alleged alcohol offense"). 

Walker and McMurtrie both testified that McMurtrie conducted a 

pat-down "for . . . safety." 

 For these reasons, the evidence of appellant's disorderly 

conduct did not render the officers' search of appellant 

reasonable under the Fourth Amendment. 

2. 

PUBLIC DRUNKENNESS 

 The search of appellant may nevertheless have been 

reasonable if supported by probable cause to arrest for public 

drunkenness under Code § 18.2-388. However, as set out above, 

the trial court did not consider the probable cause issue and 

made no factual finding regarding whether the officers had 

probable cause to arrest for public intoxication. Therefore, we 

cannot on this record determine whether the trial court may have 

reached the right result for the wrong reason. See Driscoll, 14 

Va. App. at 452, 417 S.E.2d at 314 (noting that appellate court 

may not affirm conviction under "right [result] for the wrong 

reason" rationale in "those cases where, because the trial court 

has . . . confined its decision to a specific ground, further 

factual resolution is needed"). Accordingly, I would reverse 
-33- 

appellant's convictions and remand to the trial court for 

further proceedings consistent with this opinion.