Tuesday 27th 

 October, 1998. 

Curtis S. Rhodes, Appellant, 

 against Record No. 1292-97-2 

 Circuit Court No. CR96-792 

Commonwealth of Virginia, Appellee. 

Upon a Petition for Rehearing En Banc 

Before the Full Court 

On September 18, 1998 came the appellant, by court-appointed 

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

judgment rendered herein on September 15, 1998, and grant a rehearing 

en banc thereof. 

On consideration whereof, the petition for rehearing en banc 

is granted, the mandate entered herein on September 15, 1998 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. 

 It is further ordered that the appellant shall file with the clerk of 

this Court ten additional copies of the appendix previously filed in 

this case. 

 A Copy, 

 Teste: 

 Cynthia L. McCoy, Clerk 

 By: 

 

 Deputy Clerk 
COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Fitzpatrick, Judges Benton and Elder 

Argued at Richmond, Virginia 

CURTIS S. RHODES 

 OPINION BY 

v. Record No. 1292-97-2 CHIEF JUDGE JOHANNA L. FITZPATRICK 

 SEPTEMBER 15, 1998 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF PETERSBURG 

Oliver A. Pollard, Jr., Judge 

 Mary Katherine Martin, Senior Assistant 

Public Defender, for appellant. 

 Eugene Murphy, Assistant Attorney General 

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

for appellee. 

 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 
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"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 
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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, 
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. . . 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
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decisis). 

 Affirmed. 
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Benton, J., dissenting. 

 I dissent because Lovelace v. Commonwealth, 27 Va. App. 575, 

500 S.E.2d 267 (1998), is contrary to our decision in Stanley v. 

Commonwealth, 16 Va. App. 873, 433 S.E.2d 512 (1993). In 

addition, Lovelace contains a "'flagrant error or mistake,'" see

Commonwealth v. Burns, 240 Va. 171, 174, 395 S.E.2d 456, 457 

(1990), and should not be relied upon in upholding the search 

under the circumstances presented in this case. The principle of 

stare decisis does not require us to "perpetuate . . . an 

incorrect application of the law." Nunnally v. Artis, 254 Va. 

247, 253, 492 S.E.2d 126, 129 (1997). See also Home Brewing Co. 

v. City of Richmond, 181 Va. 793, 799, 27 S.E.2d 188, 190 (1943) 

("The rule of stare decisis does not apply where the former 

decision has misunderstood or misapplied the law or is contrary 

to reason."). Thus, I believe Lovelace should be abandoned by 

this Court acting en banc. 

 It is well established that the police may conduct a full 

search incident to a lawful custodial arrest. See United States 

v. Robinson, 414 U.S. 218, 235 (1978). "[I]t is the fact of 

custodial arrest which gives rise to the authority to search." 

Id. at 236 (emphasis added); Gustafson v. Florida, 414 U.S. 260, 

266 (1973). A custodial arrest for a minor offense and search 

incident to that arrest are constitutionally unreasonable where 

by statute a state has "abjured the authority to execute 

custodial arrests for [such minor] offenses." United States v. 
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Mota, 982 F.2d 1384, 1388-89 (9th Cir. 1993). See also People v. 

Bland, 884 P.2d 312, 318 (Colo. 1994) (holding that where statute 

requires officer to issue notice or summons for violation of 

minor offense, custodial arrest and search incident to such 

arrest are prohibited); Barnett v. United States, 525 A.2d 197, 

199 (D.C. 1987) (holding that full custodial arrest for violation 

of pedestrian traffic regulation violates statute requiring 

issuance of notice of infraction and that search incident to 

arrest invalid); Thomas v. State, 614 So.2d 468, 471 (Fla. 1993) 

(holding full custodial arrest and search incident thereto 

unreasonable when person is charged with violation of minor 

ordinance under a statute that provides for only limited 

detention for purpose of issuing ticket, summons, or notice); 

State v. Martin, 253 N.W.2d 404, 405-06 (Minn. 1977) (holding 

that custodial arrest for petty misdemeanor offense was illegal 

where state rules provide that officer must issue citation for 

misdemeanor not punishable by incarceration and that search 

incident to arrest was invalid). 

 We have recognized a significant distinction between 

custodial and non-custodial arrests. Compare e.g., Glasco v. 

Commonwealth, 26 Va. App. 763, 772, 497 S.E.2d 150, 154 (1998) 

(after placing defendant under "custodial arrest" for failure to 

have a valid driver's license, officer was authorized to conduct 

search of defendant incident to that arrest), with Stanley, 16 

Va. App. at 877, 433 S.E.2d at 515 (holding that absent a 
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reasonable articulable suspicion that the operator of a motor 

vehicle is armed and dangerous, a police officer may not search 

the operator incident to a routine traffic stop), and May v. 

Commonwealth, 3 Va. App. 348, 353, 349 S.E.2d 428, 431 (1986) 

("'The similarly noncoercive aspect of ordinary traffic stops 

prompts us to hold that persons temporarily detained pursuant to 

such stops are not "in custody" for the purposes of Miranda.'" 

(quoting Berkemer v. McCarty, 468 U.S. 420, 440 (1984))). Not 

only does the Lovelace decision fail to recognize that 

distinction, it announces a rule that is plainly contrary to our 

holding in Stanley. 

 In Stanley, an officer stopped the operator of a motor 

scooter for not wearing a helmet, a violation of Code § 46.2-910, 

for which the penalty is a fine of not more than fifty dollars. 

Stanley, 16 Va. App. at 874, 433 S.E.2d at 513. We ruled that 

even though the officer had probable cause to believe the offense 

occurred and to detain the operator, the officer was not 

authorized to conduct a search incident to a routine traffic stop 

unless he could satisfy the requirements of Terry v. Ohio, 392 

U.S. 1 (1968). See Stanley, 16 Va. App. at 875-77, 433 S.E.2d at 

514-15. See also Sattler v. Commonwealth, 20 Va. App. 366, 369, 

457 S.E.2d 398, 400 (1995).1 The detention in Stanley, as in 

 

 1In addition to Stanley and Sattler, we also applied the 

Terry requirements in Nesbit v. Commonwealth, 15 Va. App. 391, 

424 S.E.2d 239 (1992). In Nesbit, we held that an officer's 

search of the defendant was not an unlawful search or seizure 

when the officer, who intended to issue the defendant a summons 

for violating a city ordinance prohibiting drinking alcohol in 
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Lovelace and this case, was one in which the officer was governed 

by the protocol of Code § 19.2-74(A)(2). 

 The distinctive aspect of a non-custodial arrest is embodied 

in the Code of Virginia. Code § 19.2-74(A)(2) by its express 

terms does not permit an officer to effect a custodial arrest for 

a non-jailable offense, except under the limited circumstances 

specified in the statute. In pertinent part, the statute reads 

as follows: 

 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, 

except as otherwise provided in Title 46.2, 

or to the offense of public drunkenness as 

defined in § 18.2-388, 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 

public, detained the defendant in a "high crime area," noticed 

the defendant kept his hand in his pants pockets, and suspected 

the defendant might have a weapon. When the officer asked the 

defendant to remove his hand from his pocket, the defendant 

refused and acted fidgety, turned, and attempted to flee. Id. at 

393, 434 S.E.2d at 240. We noted the following: 

 Whether the circumstances justify an 

inference that the suspect may be armed and 

dangerous depends upon "the 'characteristics 

of the area' where the stop occurs, the time 

of the stop . . . as well as any suspicious 

conduct of the person accosted such as an 

obvious attempt to avoid officers or any 

nervous conduct on the discovery of their 

presence." 

Id. (citation omitted). We upheld the search because the 

circumstances reasonably suggested that Nesbit was armed and 

dangerous. See id.
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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 

§ 19.2-82 [and bring the person before a 

magistrate]. 

Code § 19.2-74(A)(2). In addition, Code § 19.2-74(A)(3) provides 

that "[a]ny person refusing to give such written promise to 

appear under the provisions of this section shall be taken 

immediately by the arresting or other police officer before a 

magistrate or other issuing authority having jurisdiction, who 

shall proceed according to provisions of § 19.2-82." Thus, 

except as provided in the statute, the detention of an individual 

for the purpose of issuing a citation or summons under Code 

§ 19.2-74(A)(2) for a non-jailable offense is not a "custodial 

arrest" and does not create a right to search that individual 

incident to that detention. 

 "A statute that mandates issuance of a notice or summons and 

provides for release upon signing a promise to appear will 

thereby prohibit custodial arrests." Bland, 884 P.2d at 318. 

Thus, a police officer may not search an individual incident to 

the issuance of a summons or citation for an offense which does 

not carry an active jail sentence unless: (1) the officer has 

reasonable suspicion that the individual is armed and dangerous, 

or (2) to search for evidence or instrumentalities of the 

specific crime for which the officer has probable cause to issue 
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the summons or citation or make an arrest. See 3 Wayne R. 

LaFave, Search and Seizure § 5.2(h), at 96, 99 (3d ed. 1996). 

See also Stanley, 16 Va. App. at 877, 433 S.E.2d at 515; Bland, 

884 P.2d at 321. This limitation on the power of a police 

officer represents both a judicial and legislative recognition 

that the dangers presented in the context of a temporary 

detention for the purpose of issuing a citation are no greater 

than those presented in the stop-and-frisk situations involved in 

Terry. As in Terry, when a police officer issues a summons under 

circumstances not warranting a custodial arrest, the 

circumstances involve a brief encounter where the mere 

possibility of danger cannot justify any and all searches the 

officer may wish to conduct. See LaFave, supra, at 96. Instead, 

the officer must have a reasonable belief that the individual is 

armed and dangerous or that the person has secreted on his person 

some instrumentalities of the specific crime for which the 

officer has probable cause to arrest. See id. at 99. 

 In this case, the officer's search of Rhodes violated the 

Fourth Amendment's prohibition against unreasonable searches and 

seizures. See Terry, 392 U.S. at 9. 

 To conduct a patdown search, a police officer 

must be able to "'"point to specific and 

articulable facts which, taken together with 

rational inferences from those facts,"' 

reasonably lead him to conclude, 'in light of 

his experience, that "criminal activity may 

be afoot" and that the suspect "may be armed 

and presently dangerous."'"

Sattler, 20 Va. App. at 368, 457 S.E.2d at 400 (citations 
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omitted) (emphasis added). The officer initially detained Rhodes 

solely for the purpose of issuing a summons under Code 

§ 19.2-74(A)(2) for violation of a city ordinance prohibiting 

open containers of alcohol in public. The officer offered no 

specific and articulable facts upon which to conclude that Rhodes 

was armed and dangerous. Rhodes did not have his hand in his 

pocket, and he made no suspicious moves or gestures. See

Stanley, 16 Va. App. at 877, 433 S.E.2d at 515 (holding it was 

unreasonable for police officers effecting a traffic stop to 

conclude a motor scooter operator was armed and dangerous because 

police office saw bulge in his pocket). The officer searched 

Rhodes solely because of the officer's general policy of 

searching every person who he places "in custody" and his belief 

that everyone is dangerous. However, in every non-custodial 

detention encounter, "Terry requires reasonable, individualized 

suspicion before a frisk for weapons can be conducted." Maryland 

v. Buie, 494 U.S. 325, 334 n.2 (1990). The officer's generalized 

policy of frisking all persons does not satisfy the restrictions 

imposed by Terry. "'Indeed, if everyone is assumed to be armed 

and dangerous until the officer is satisfied that he or she is 

not, then officers would be able to frisk at will - a result not 

contemplated by the Fourth Amendment.'" Sattler, 20 Va. App. at 

369, 457 S.E.2d at 400 (citation omitted). Thus, our decisions 

in Stanley, Sattler and Nesbit require a reasonable, articulable 

suspicion that the person may be armed and dangerous before a 
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police officer may search a person who has been detained for a 

minor traffic infraction or city ordinance that is a non-jailable 

offense. 

 Rhodes was charged with having an open container of beer in 

a public place. The officer saw Rhodes with the container, saw 

the bottle on the porch, and heard Rhodes say that he placed the 

open bottle of beer on the porch. The officer was not entitled 

to search Rhodes. Under these circumstances, he could only issue 

Rhodes a summons based on the non-custodial detention. Because 

the search incident to this non-custodial detention was 

unreasonable under the Fourth Amendment, I would reverse the 

trial judge's refusal to suppress the item the officer seized 

when he searched Rhodes.