COURT OF APPEALS OF VIRGINIA 

Present: Judges Elder, Bray and Senior Judge Baker 

Argued at Richmond, Virginia 

DWAYNE CHRISTOPHER HOPKINS, S/K/A 

 AURELIOUS HOPKINS, A/K/A DWAYNE HOPKINS 

 MEMORANDUM OPINION* BY 

v. Record No. 0644-98-2 JUDGE LARRY G. ELDER 

 APRIL 27, 1999 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND 

Thomas N. Nance, Judge 

Patricia P. Nagel, Assistant Public Defender 

(David J. Johnson, Public Defender, on 

brief), for appellant. 

Eugene Murphy, Assistant Attorney General 

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

for appellee. 

 Dwayne Christopher Hopkins (appellant) appeals from his bench 

trial conviction for possessing cocaine. On appeal, he contends 

that the trial court erroneously (1) denied his motion to suppress 

based on an illegal seizure and (2) admitted a certificate of 

analysis into evidence without proof that it had been filed as 

required by Code § 19.2-187. For the reasons that follow, we 

disagree and affirm appellant’s conviction. 

 *

Pursuant to Code § 17.1-413, recodifying Code § 17-116.010, 

this opinion is not designated for publication. 
I. 

DENIAL OF MOTION TO SUPPRESS 

 At a hearing on a defendant’s motion to suppress, the 

Commonwealth has the burden of proving that a warrantless search 

or seizure did not violate the defendant’s Fourth Amendment 

rights. See Simmons v. Commonwealth, 238 Va. 200, 204, 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 fairly deducible therefrom. See

Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 

48 (1991). “[W]e 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 v. Commonwealth, 25 Va. App. 193, 198, 487 

S.E.2d 259, 261 (1997) (en banc) (citing Ornelas v. United States, 

517 U.S. 690, 699, 116 S. Ct. 1657, 1659, 134 L. Ed. 2d 911 

(1996)). However, we 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. 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 concedes that the officers’ initial approach of his 

vehicle was reasonable, but he contends that the officers violated 

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the Fourth Amendment by unlawfully searching his car and seizing 

him. We disagree.1

 Here, the officers’ initial approach of appellant’s vehicle 

did not implicate the Fourth Amendment, for the officers were 

attempting, initially, 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 Commonwealth, establishes that while in such a position, 

with the aid of a flashlight, Officer Melvin observed an alcohol 

bottle on the floor of the vehicle directly beneath appellant’s 

leg. Because Melvin saw the object in plain view from a public 

place, the discovery did not implicate the Fourth Amendment. See, 

e.g., United States v. Dunn, 480 U.S. 294, 304-05, 107 S. Ct. 

1134, 1141, 94 L. Ed. 2d 326 (1987); Cook v. Commonwealth, 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 bottle, combined with appellant’s 

apparent unconsciousness and the difficulty the officers had in 

 1

Appellant analyzes the officers’ actions under the community 

caretaker doctrine. For the reasons set out below, we hold that 

the actions of Officers Melvin and Flick were objectively 

reasonable in the context of an investigation of possible 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 their actions under the community 

caretaker doctrine. 

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rousing him, provided the officers with an objectively reasonable 

suspicion that appellant was operating a motor vehicle under the 

influence of alcohol or narcotics in violation of Code § 18.2-266. 

See Williams v. City of Petersburg, 216 Va. 297, 300, 217 S.E.2d 

893, 896 (1975) (holding that accused who was slumped over 

steering wheel of vehicle stopped in parking lot with engine 

running was “operating” vehicle for purposes of statute 

proscribing driving under the influence). Based on evidence 

supporting such a suspicion, the officers were entitled to detain 

appellant briefly for questioning in order to confirm or dispel 

their suspicions. When appellant responded to their question 

about whether he was “okay” with an equivocal, “I guess,” the 

officers were entitled to remove appellant from the vehicle to 

determine whether he was, in fact, intoxicated.2 See, e.g., Nash 

v. Commonwealth, 12 Va. App. 550, 552-53, 404 S.E.2d 743, 744 

(1991). Once appellant got out, the officers could see the 

homemade pipe in plain view on the floor of the vehicle and 

observed that appellant was unsteady on his feet and “out of it.” 

 “An officer may seize an item in plain view if the officer is 

lawfully in a position to see the item and it is ‘immediately 

apparent that the item 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 the light most 

favorable to the Commonwealth, establishes that appellant exited 

the vehicle voluntarily when the officers asked, “Do you mind 

stepping out of [the] car?” 

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(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 appellant exited the car. Although 

neither officer testified expressly that he believed the pipe was 

evidence of criminal activity, Officer Melvin specifically 

identified the device as a homemade pipe and Officer Flick 

testified that he handcuffed appellant because of the pipe, making 

clear the officers’ belief that the pipe was evidence of a crime. 

See id. at 304, 450 S.E.2d at 777 (holding that “[e]ven without 

knowing the exact nature of the [burned] residue [on foil atop a 

plastic bottle], it may have been immediately apparent to the 

officer that the bottle was evidence of a crime” because of the 

“highly unlikely event that it would have a legitimate use,” 

thereby satisfying the “immediately apparent” requirement). 

 The presence of the pipe, coupled with appellant’s apparent 

unconsciousness when the officers approached, their difficulty in 

rousing him, his equivocal response to their inquiries about his 

well being, and his condition upon exiting the vehicle, gave the 

officers probable cause to arrest him for operating a motor 

vehicle while under the influence of intoxicants.3

 3

That the officers may not have conducted any field sobriety 

tests after appellant exited the vehicle or charged appellant with 

driving under the influence is irrelevant to determining whether 

their actions in seizing the pipe and arresting appellant were 

objectively reasonable. 

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 For these reasons, appellant and the pipe were properly 

seized, and the trial court did not err in denying appellant’s 

motion to suppress. 

II. 

ADMISSIBILITY OF CERTIFICATE OF ANALYSIS 

 Appellant also contends that the trial court erred in 

admitting the certificate of analysis into evidence under Code 

§ 19.2-187. He concedes that the certificate was in the trial 

court’s case file but contests the holding of the trial court that 

this presence was sufficient to constitute filing within the 

meaning of the statute. We disagree. 

 Code § 19.2-187 provides, in relevant part, 

that a certificate of analysis shall be 

admissible in evidence provided (i) the 

certificate of analysis is filed with the 

clerk of the court hearing the case at least 

seven days prior to the hearing or trial and 

(ii) a copy of such certificate is mailed or 

delivered . . . to counsel of record for the 

accused at least seven 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 certificate to be used in evidence is lodged timely in a 

secure and appropriate 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 court has discretion in ruling on the 

admissibility of evidence. See Langhorne v. Commonwealth, 13 Va. 

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App. 97, 106, 409 S.E.2d 476, 482 (1991). However, “[b]ecause 

[Code § 19.2-187] ‘deals with criminal matters, and it undertakes 

to make admissible evidence which otherwise’ might be 

objectionable, it ‘should be construed strictly against the 

Commonwealth and in favor of the accused.’” Winston v. 

Commonwealth, 16 Va. App. 901, 904, 434 S.E.2d 4, 5 (1993) 

(quoting Gray v. Commonwealth, 220 Va. 943, 945, 265 S.E.2d 705, 

706 (1980)). “Prejudice to the defendant from a failure 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 proper circuit court case file at least seven 

days before trial was sufficient to permit its admissibility under 

the statute. As we previously have noted, a certificate of 

analysis is “filed with” the clerk of court within the meaning of 

Code § 19.2-187 when “received by” the 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 delivered to the clerk for 

filing.”)). Furthermore, “Code § 19.2-187 does 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, 403 S.E.2d 360, 361 (1991). As a result, we 

have held that the notation on a “document [that it] had been 

‘filed’ and the date and initials of the deputy clerk who filed it 

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were sufficient for the trial court to determine that the 

certificate had been filed” in the proper court in compliance with 

the statute. See id. Implicit in this ruling is that such a 

notation on the face of a certificate is merely circumstantial 

evidence of proper filing and that proper filing also may be 

established in other ways. 

 Deputy Clerk Maureen Williams testified that the general 

district court warrants were received in the clerk’s office on 

February 13, 1998, as indicated by a date stamp, and delivered to 

the Commonwealth’s Attorney’s office on February 18, 1998, as 

indicated by another date stamp. She identified the docket number 

and judge’s initials written on the face of the warrant as being 

in her own handwriting and said she wrote that information on the 

warrant while the file was in the clerk’s office sometime between 

February 13 and February 17. She also explained that the top two 

sheets in the file contained a carbon feature such that when she 

wrote on the top sheet, the docket number and initials were 

imprinted on other sheets in the file, including the certificate 

of analysis, which was the third sheet in the file. She 

confirmed, based on the carbon copy notations in her handwriting, 

that the certificate was in the file no later than February 17. 

 This evidence established that the certificate of analysis 

was in the circuit court case file for the charged offense at 

least seven days prior to trial and, therefore, that it was “filed 

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with” the clerk of court in compliance with Code § 19.2-187.4 

Accordingly, the trial court did not err in admitting the 

certificate into evidence. 

 For these reasons, we hold that the trial court did not err 

in denying the motion to suppress or admitting the certificate of 

analysis into evidence, and we affirm appellant’s conviction. 

 Affirmed.

 4

Here, the certificate was lodged in the appropriate file 

and, therefore, was “accessible” and “available” to appellant in 

compliance with Code § 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 the certificate--once “received by” and, 

therefore, “filed with” the clerk--would have been admissible if 

the clerk had filed it in a manner that rendered it neither 

accessible nor available to appellant. 

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