COURT OF APPEAL S OF VIRGINIA

Present: Judg es Elder, Bray and Senior Judge Baker Argued at Rich mond, Virginia

DWAYNE CHRISTOPHE R HOPKINS, S/K/A AURELIOUS HOPK INS, A/K/A DWAYNE HOPKINS MEMORANDUM OPINION * BY v. Record No. 0644-98-2 JUDGE LARR Y G. ELDER APRIL 27, 1999 COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND Thomas N. Na nce, Judge Patricia P. Nage l, Assistant Pu blic Defender (David J. John son, Public Defender, on brief), for appellant. Eugene Murphy, Assist ant Attorney General (Mark L. Earley, Attorney General, on brief), for appellee. Dwayne Christopher Ho pkins (appella nt) appeals fr om his bench trial conviction for possessing cocaine. On appeal, he contends that the trial court er roneously (1) de nied his motion to suppress based on an ille gal seizure and (2) admitted a certificate of analysis into ev idence without proof that it had been filed as required by Code § 19.2-187. For the reasons th at follow, we disagree and affirm ap pellant’s co nviction.

* Pursuant to Code § 17 .1-413, recodi fying Code § 17-116.010, this opinion is not desi gnated for publication.I. DENIAL OF MOTI ON TO SUPPRESS At a hearing on a defendant’ s motion to suppress, the Commonwealth has the burden of pr oving that a warr antless search or seizure did not vi olate the defe ndant’s Fourth Amendment rights. See Simmons v. Commonwealth , 238 Va. 200, 20 4, 380 S.E.2d 656, 659 (1989); Alexander v. Commonwealth , 19 Va. App. 671, 674, 454 S.E.2d 39, 41 (1995). On appeal, we view the evidence in the light most favorable to the prevailing party, granting to it all reasonable inferences fair ly deducible therefrom. See Commonwealth v. Grimstead , 12 Va. App. 1066, 1067, 407 S. E.2d 47, 48 (1991). “[W]e ar e bound by the trial court’s find ings of historical fact unless ‘plainly wrong’ or without ev idence to support them[,] an d we give due weight to the inferences drawn from those facts by resident ju dges and local law enforcement officers.” McGee v. Commonwealth , 25 Va. App. 193, 198, 487 S.E.2d 259, 261 (1997) ( en banc ) (citing Ornelas v. Un ited States , 517 U.S. 690, 699, 116 S. Ct. 1657, 1659 , 134 L. Ed. 2d 911 (1996)). Howeve r, we review de novo the trial cour t’s application of defined legal standards such as probable cause and reasonable suspicion to the particul ar facts of the case. See Shears v. Commonwealth , 23 Va. App. 394, 398, 477 S.E.2d 309, 311 (1996);

see also Ornelas , 517 U.S. at 699, 116 S. Ct. at 1659. Appellant conc edes that the of ficers’ initial ap proach of his vehicle was reason able, but he contends that the officers violated - 2 -the Fourth Amendment by unlawfully searchin g his car an d seizing him. We disagree. 1 Here, the officers’ initial appr oach of appell ant’s vehicle did not implicate the Fourth Amendment, for the offi cers were attempting, in itially, merely to awaken the unconscious appellant and to engage him in a consensual encounter on a public street. See , e.g. , Payne v. Commonwealth , 14 Va. App. 86 , 88, 414 S.E.2d 869, 870 (1992). The evidence, viewed in the light most favorable to the Commonweal th, establishes th at while in su ch a position, with the aid of a flas hlight, Officer Melvin observed an alcohol bottle on the fl oor of the vehicl e directly bene ath appellant’s leg. Because Me lvin saw the object in pl ain view from a public place, the discovery did not implicat e the Fourth Amendment. See , e.g. , United States v. Dunn , 480 U.S. 294, 30 4-05, 107 S. Ct. 1134, 1141, 94 L. Ed. 2d 326 (1987); Cook v. Co mmonwealth , 216 Va. 71, 73, 216 S.E.2d 48, 50 (1975); see also Horton v. California , 496 U.S. 128, 130, 110 S. Ct. 2301, 2304 , 110 L. Ed. 2d 112 (1990). The presence of the alcohol bott le, combined wi th appellant’s apparent unconsciousnes s and the diffic ulty the officers had in

1 Appellant analyz es the officers ’ actions under the community caretaker doct rine. For the reas ons set out below, we hold that the actions of Office rs Melvin and Flic k were objectively reasonable in the context of an in vestigation of po ssible criminal activity. See , e.g. , Whren v. United States , 517 U.S. 806, 812-13, 116 S. Ct. 1769, 1774, 135 L. Ed. 2d 89 (1996). Therefore, we do not analyze th eir actions under the community caretaker doctrine. - 3 -rousing him, provided the officers wi th an objectiv ely reasonable suspicion that appell ant was operatin g a motor vehi cle under the influence of alcohol or narcotics in violation of Code § 18.2-266. See Williams v. City of Petersburg , 216 Va. 297, 30 0, 217 S.E.2d 893, 896 (1975) (holding that accused who wa s slumped over steering wheel of ve hicle stopped in parking lot with engine running was “ope rating” vehicl e for purposes of statute proscribing driv ing under the in fluence). Base d on evidence supporting such a suspicion, the officers we re entitled to detain appellant brie fly for questionin g in order to co nfirm or dispel their suspicio ns. When appell ant responded to their question about whether he was “okay” with an equi vocal, “I guess,” the officers were en titled to remove appell ant from the vehicle to determine whet her he was, in fact, into xicated. 2 See , e.g. , Nash v. Commonwealth , 12 Va. App. 550, 552- 53, 404 S.E.2d 743, 744 (1991). Once appell ant got out, the offi cers could see the homemade pipe in pl ain view on the floo r of the vehicle and observed that appe llant was unsteady on his feet an d “out of it.” “An officer may se ize an item in plain vi ew if the officer is lawfully in a position to see th e item and it is ‘immediately apparent that the it em may be evidence of a crime.’” Commonwealth v. Ramey , 19 Va. App. 300, 303, 450 S.E.2d 775, 777 (1994)

2 Furthermore, the evidence, viewed in th e light most favorable to the Common wealth, establis hes that appellant exited the vehicle volunt arily when the officers asked, “Do you mind stepping out of [the] car?” - 4 -(quoting Carson v. Commonwealth , 12 Va. App. 497, 501, 404 S.E.2d 919, 921 (1991), aff’d , 13 Va. App. 280, 410 S.E.2d 412 ( en banc ), aff’d , 244 Va. 293, 421 S. E.2d 415 (1992)). Here, the pipe and stem were in plain view when appellan t exited the ca r. Although neither officer te stified expres sly that he believ ed the pipe was evidence of cr iminal activity, Office r Melvin specifically identified the device as a ho memade pipe an d Officer Flick testified that he handcuffed appellant beca use of the pipe, making clear the office rs’ belief that th e pipe was evidence of a crime. See id. at 304, 450 S.E.2d at 777 (holding th at “[e]ven without knowing the exact nature of the [b urned] residue [o n foil atop a plastic bottle ], it may have been immediately apparent to the officer that the bottle was evidence of a cr ime” because of the “highly unlike ly event that it would have a le gitimate use,” thereby satisfyi ng the “immedia tely apparent” requirement). The presence of the pipe, coup led with appell ant’s apparent unconsciousnes s when the officers approa ched, their di fficulty in rousing him, his equivo cal response to their inquir ies about his well being, and his co ndition upon exiting th e vehicle, gave the officers probable ca use to arrest him fo r operatin g a motor vehicle while unde r the influence of intoxicants. 3

3 That the officers may not have conducted any field sobriety tests after appell ant exited the vehicle or charged appe llant with driving under the influence is irrelevant to determin ing whether their actions in seizing the pipe and arresting appellant were objectively reasonable. - 5 -For these reas ons, appellant and the pipe were properly seized, and the trial court did not err in deny ing appellant’s motion to suppress. II. ADMISSIBILITY OF CERTIFICATE OF ANALYSIS Appellant also co ntends that the tr ial court erred in admitting the cert ificate of analysis into evidence under Code § 19.2-187. He concedes that th e certificate wa s in the trial court’s case file but contests the holding of the trial court that this presence was suff icient to cons titute filing within the meaning of the statut e. We disagree. Code § 19.2-187 provides , in relevant part, that a certificate of analysis shall be admissible in evidence prov ided (i) the certificate of analysis is filed with the clerk of the court hear ing the case at least seven days prior to th e hearing or trial and (ii) a copy of such ce rtificate is mailed or delivered . . . to counsel of record for the accused at least seve n days prior to the hearing or trial upon request of such counsel. Id. (emphasis added) . The purpose of the statute “is to ensure that the certificat e to be used in evidence is lodg ed timely in a secure and appropriat e place, accessible to the accused, and available to him on request.” Stokes v. Commonwealth , 11 Va. App. 550, 552, 399 S.E.2d 453, 454 (1991). Ordinarily, a cour t has discreti on in ruling on the admissibility of evidence. See Langhorne v. Commonwealth , 13 Va.

- 6 -App. 97, 106, 409 S.E. 2d 476, 482 (1991). However, “[b]ecause [Code § 19.2-187] ‘deals with criminal matters, an d it undertakes to make admissible evidence which otherwis e’ might be objectionable, it ‘should be construe d strictly against the Commonwealth and in favor of th e accused.’” Winston v. Commonwealth , 16 Va. App. 901, 904, 434 S.E.2d 4, 5 (1993) (quoting Gray v. Co mmonwealth , 220 Va. 943, 945, 265 S.E.2d 705, 706 (1980)). “Prejudice to the defendant from a fa ilure to comply need not be shown.” Woodward v. Commonwealth , 16 Va. App. 672, 674, 432 S.E.2d 510, 512 (1993). Despite these rules, we hold that the presence of the certificate in the prop er circuit cour t case file at least seven days before trial was sufficient to permit its admi ssibility under the statute. As we previously have no ted, a certificate of analysis is “filed with” the cler k of court within the meaning of Code § 19.2-187 when “r eceived by” th e clerk. See Waller v. Commonwealth , 27 Va. App. 71, 75, 497 S.E.2d 508, 510 (1998) (citing Rhem v. State , 820 S.W.2d 946, 947 (Tex. Crim. App. 1991) (“A document is considered filed when de livered to the clerk for filing.”)). Furthermor e, “Code § 19.2-187 do es not prescribe the manner in which a clerk’s office must mark such certificates” before they may be considered filed. Carter v. Commonwealth , 12 Va. App. 156, 158, 40 3 S.E.2d 360, 361 (199 1). As a result, we have held that the no tation on a “d ocument [that it] had been ‘filed’ and the da te and initials of the deputy cl erk who filed it

- 7 -were sufficient for the trial cour t to determine that the certificate had been filed” in th e proper court in compliance with the statute. See id. Implicit in this ruling is that such a notation on the face of a certif icate is merely circumstantial evidence of prop er filing and that prop er filing also may be established in other ways. Deputy Clerk Mauree n Williams testifie d that the general district court warrants were received in th e clerk’s of fice on February 13, 1998, as indicated by a date st amp, and delivered to the Commonweal th’s Attorney’s office on February 18, 1998, as indicated by another date stamp. She identified the docket number and judge’s initia ls written on the face of the warrant as being in her own handwr iting and said she wrote that information on the warrant while the file was in the clerk’s office so metime between February 13 and February 17. Sh e also explained that the top two sheets in the fi le contained a ca rbon feature such that when she wrote on the top shee t, the docket number and initials were imprinted on other shee ts in the file, incl uding the ce rtificate of analysis, which was the third sheet in the file. She confirmed, based on th e carbon copy notations in he r handwriting, that the certificate wa s in the file no late r than February 17. This evidence esta blished that the cert ificate of analysis was in the circuit co urt case file for th e charged of fense at least seven days prior to trial and, theref ore, that it was “filed

- 8 -with” the clerk of court in compliance with Code § 19.2-187. 4 Accordingly, the trial court did not err in admitting the certificate in to evidence. For these reason s, we hold that the trial court did not err in denying the mo tion to suppress or admitting th e certificate of analysis into eviden ce, and we affirm ap pellant’s co nviction. Affirmed.

4 Here, the certificate was lodged in the appr opriate file and, therefore, was “a ccessible” and “availab le” to appellant in compliance with Co de § 19.2-187. See Harshaw v. Commonwealth , 16 Va. App. 69, 72 & n. 2, 427 S.E.2d 733, 735 & n.2 (1993); see also Waller , 27 Va. App. at 76 -77, 497 S.E.2d at 510-11. We do not consider whether th e certificate--once “receive d by” and, therefore, “filed with ” the clerk--wou ld have been admissible if the clerk had file d it in a manner that rendered it neither accessible nor avai lable to appellant. - 9 -