COURT OF APPEALS OF VIRGINIA

Present: Judg e Bray, Senior Judges Cole and Overton Argued at Rich mond, Virginia

MICHAEL FERN ELL FARROW OPINION BY v. Record No. 0212-98-2 JUDGE RICHAR D S. BRAY FEBRUARY 22, 2000 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY John F. Daffron, Jr., Judge Lee W. Kilduff (A nthony 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 complain s on appeal that the

court erroneou sly denied his motion to suppress the drugs and related evidence . We agree and reve rse the co nviction. "In reviewing a trial court's deni al of a motion to suppress, 'the burden is upon the defendant to show that th e ruling, when the evidence is considered most favorably to th e 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 stan dards 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 omitte d). "In performing such analysis, we are bound by the trial court's findings of hist orical fact unless 'plainly wrong' or without evidence to supp ort them and we give due weight to the inferences draw n from those facts by resident judges and local law enforcem ent office rs." McGee , 25 Va. App. at 198, 487 S.E.2d at 26 1 (quoting Ornelas v. Un ited States , 517 U.S. 690, 699 (1996)). On March 29, 1997, Of ficer Timothy Mo rton of the Chesterfield County Police Departme nt, while patrol ling Cloverleaf Mall in Chesterfield, re ceived "a call fr om Mall security to assist . . . with a subject [def endant] that they wanted to ban fr om the Mall." Morton approached an d asked defend ant to "step back to the security office." De fendant accompan ied 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 th at shit." Morton then arrested defend ant "for profanity in public," a Class 3 misdemeanor, handcuffed and "walked" him to the security office, "where the summons . . . and the papers are ke pt." Once inside, defendant was ad vised of his Miranda rights and "thoroughly searched," resulting in disc overy of the cocaine. In support of his co ntention that the search was in violation of the Fourth Amendm ent, requiring suppre ssion of the related

- 2 -evidence, defend ant asserts th at a "brief detentio n" incidental to the issuance of a summons for a Cl ass 3 misdemeanor does not rise to a custodial arrest or otherwis e justify a se arch of the accused. Defend ant further conten ds that he was subjected to a custodial arrest in violation of Code § 19.2-74( A)(2), a circumstance that he maintains al so requires supp ression 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. - 3 -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 concerns 2 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 ___.

- 4 -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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