COURT OF APPEALS OF VIRGINIA 

Present: Judge Bray, Senior Judges Cole and Overton 

Argued at Richmond, Virginia 

MICHAEL FERNELL FARROW 

 OPINION BY 

v. Record No. 0212-98-2 JUDGE RICHARD S. BRAY 

 FEBRUARY 22, 2000 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY 

John F. Daffron, Jr., Judge 

 Lee W. Kilduff (Anthony G. Spencer; 

Morchower, Luxton & Whaley, on briefs), for 

appellant. 

 Marla Graff Decker, Assistant Attorney 

General (Mark L. Earley, Attorney General, on 

brief), for appellee. 

 Michael Fernell Farrow (defendant) was convicted, in a bench 

trial, for possession of cocaine. He complains on appeal that the 

court erroneously denied his motion to suppress the drugs and 

related evidence. We agree and reverse the conviction. 

 "In reviewing a trial court's denial of a motion to suppress, 

'the burden is upon the defendant to show that the 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) (citation 

omitted). "[W]e review de novo the trial court's application of 

defined legal standards such as probable cause and reasonable 

suspicion to the particular facts of the case." Hayes v. 
Commonwealth, 29 Va. App. 647, 652, 514 S.E.2d 357, 359 (1999) 

(citation omitted). "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 and we give due weight 

to the inferences drawn from those facts by resident judges and 

local law enforcement officers." McGee, 25 Va. App. at 198, 487 

S.E.2d at 261 (quoting Ornelas v. United States, 517 U.S. 690, 699 

(1996)). 

 On March 29, 1997, Officer Timothy Morton of the Chesterfield 

County Police Department, while patrolling Cloverleaf Mall in 

Chesterfield, received "a call from Mall security to assist . . . 

with a subject [defendant] that they wanted to ban from the Mall." 

Morton approached and asked defendant to "step back to the 

security office." Defendant accompanied Morton a short distance 

but suddenly "veer[ed] off" from the office. When Morton advised 

defendant, "it would be in your best interest to get you to Mall 

security and get you banned and get you out of here," he 

responded, "They ain't going to ban me for that shit." Morton 

then arrested defendant "for profanity in public," a Class 3 

misdemeanor, handcuffed and "walked" him to the security office, 

"where the summons . . . and the papers are kept." Once inside, 

defendant was advised of his Miranda rights and "thoroughly 

searched," resulting in discovery of the cocaine. 

 In support of his contention that the search was in violation 

of the Fourth Amendment, requiring suppression of the related 

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evidence, defendant asserts that a "brief detention" incidental to 

the issuance of a summons for a Class 3 misdemeanor does not rise 

to a custodial arrest or otherwise justify a search of the 

accused. Defendant further contends that he was subjected to a 

custodial arrest in violation of Code § 19.2-74(A)(2), a 

circumstance that he maintains also requires suppression of the 

evidence.1

 It is well established that, following "a lawful custodial

arrest[,] a full search of the person is not only an exception 

to the warrant requirement of the Fourth Amendment, but is also 

a 'reasonable' search under that Amendment." United States v. 

Robinson, 414 U.S. 218, 235 (1973) (emphasis added). However, 

the Supreme Court has refused to extend this "bright-line rule" 

to a "search incident to citation" related to a "routine traffic 

stop." Knowles v. Iowa, 525 U.S. 113, 118 (1998). The Court 

reasoned that "the two historical rationales for the 'search 

incident to arrest' exception[,] (1) the need to disarm the 

suspect in order to take him into custody, and (2) the need to 

preserve evidence for later use at trial[,]" did not attend such 

"relatively brief" police/citizen "encounter[s]." Id. at 116. 

 Subsequently, in Lovelace v. Commonwealth, 258 Va. 588, ___ 

S.E.2d ___ (1999), the Supreme Court of Virginia, guided by the 

rationale of Knowles, concluded that Class 3 and 4 misdemeanors 

 1

 We find that this issue is subsumed in our resolution of 

the constitutional argument. 

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were "similar in nature and duration to a routine traffic stop" 

and did not "contemplate[] a custodial situation equivalent to 

an actual custodial arrest." Lovelace, 258 Va. at 596, ___ 

S.E.2d at ___; see Code § 19.2-74(A)(2). Thus, "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." Id. at 596, ___ S.E.2d at ___. The 

Court recognized, however, that such "an encounter between 

[police] and an individual . . . may involve some degree of 

danger to the officer or . . . need to preserve or discover 

evidence sufficient to warrant an additional intrusion," 

"limited to what is necessary to answer the concerns raised by 

. . . either historical rationale." Id. at 594, ___ S.E.2d at 

___. 

Here, Officer Morton was authorized by Code § 19.2-74(A)(2) 

only to issue defendant a summons for a Class 3 misdemeanor. 

Nevertheless, defendant was handcuffed and escorted to a 

security room to afford Morton access to his "summons book" and 

other "papers." The record establishes neither a need to 

preserve evidence nor safety concerns2 in support of the 

custodial equivalent to arrest and the related search of 

 2

 If, as the Commonwealth asserts on brief, circumstances 

had accompanied the encounter which threatened Morton, the 

"thorough search" of defendant clearly exceeded the "limited" 

"additional intrusion . . .[] necessary to answer the concerns." 

Lovelace, 258 Va. at 594, ___ S.E.2d at ___. 

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defendant's person. See id. at 597, ___ S.E.2d at ___; see also

Smith v. Commonwealth, 30 Va. App. 737, 742, 519 S.E.2d 831, 833 

(1999); Rhodes v. Commonwealth, 29 Va. App. 641, 645, 513 S.E.2d 

904, 906 (1999). 

 Accordingly, the trial court erroneously denied the motion 

to suppress, and we reverse and remand for such further 

proceedings as the Commonwealth may deem appropriate. 

 Reversed and remanded.

 

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