COURT OF APPEALS OF VIRGINIA 

Present: Chief Judge Huff, Judges Decker and AtLee 

Argued at Chesapeake, Virginia 

ANTHONY LAMONT PURVIS 

 MEMORANDUM OPINION*

 BY 

v. Record No. 0921-14-1 JUDGE RICHARD Y. ATLEE, JR. 

 FEBRUARY 23, 2016 

COMMONWEALTH OF VIRGINIA 

 FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK 

Jerrauld C. Jones, Judge 

 J. Barry McCracken, Assistant Public Defender, for appellant. 

 Steven A. Witmer, Senior Assistant Attorney General (Mark R. 

Herring, Attorney General, on brief), for appellee. 

 Charged with cocaine distribution, Anthony Lamont Purvis moved to suppress evidence 

discovered on his person, in his car, and in his home. He alleged that his Fourth Amendment 

rights were violated when police searched his car and his person with invalidly-obtained consent, 

and later used the fruits of those searches to obtain a search warrant.1

 He now appeals the trial 

court’s denial of his motion to suppress.2

 We affirm. 

 *

 Pursuant to Code § 17.1-413, this opinion is not designated for publication. 

1

 Purvis’s only challenge to the issuance of the search warrant for his residence is that the 

searches of his person and car were unreasonable and, therefore, that the fruits of those searches 

could not provide a basis for the issuance of a warrant. He does not challenge the search of his 

residence on any other ground. 

 

2

 Judge Jerrauld C. Jones accepted Purvis’s conditional guilty plea in this case. Judge 

Mary Jane Hall heard the motion to suppress that is the subject of this appeal. 

UNPUBLISHED 
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I. BACKGROUND

 “In reviewing the denial of a motion to suppress evidence claiming a violation of a 

person’s Fourth Amendment rights, we consider the facts in the light most favorable to the 

Commonwealth, the prevailing party at trial.” Malbrough v. Commonwealth, 275 Va. 163, 168, 

655 S.E.2d 1, 6 (2008). So viewed, the facts are as follows. 

 On October 3, 2013, uniformed Officers McMullen and Smith of the Norfolk Police 

Department were on patrol in an unmarked police vehicle. Shortly before 10:00 p.m., Officer 

McMullen activated the vehicle’s emergency lights and siren and stopped a car after seeing it 

make an improper right turn from the center lane.3

 He approached the car and found Purvis to be 

the driver. Officer Smith approached a woman in the passenger seat and began speaking with 

her. Officer McMullen saw that Purvis was nervous and that his hands were shaking. When 

Officer McMullen asked for his license, Purvis admitted that it was suspended. (The officer 

confirmed Purvis’s license suspension.) Officer McMullen then told Purvis that he “wasn’t 

overly concerned with [Purvis’s] driver’s license being suspended due to his cooperation” and 

asked if he could search Purvis “and the vehicle for any weapons or narcotics that he might have 

on him or in the vehicle.” In response, Purvis exited the car and consented to a search of his 

person and his car. 

 Officer McMullen searched Purvis and Purvis’s passenger, but found nothing 

incriminating. During his search of the front passenger-side door of the car, however, Officer 

McMullen found a straw and a folded dollar bill inside a cigarette box, both containing a 

substance later confirmed to be cocaine residue. While Purvis and the officers were still on the 

side of the road, Detective Carpenter of the Norfolk Police Department arrived. Officer 

 3

 Purvis does not contest the validity of the stop. 
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McMullen advised Detective Carpenter that Purvis had given consent to search his person and 

his vehicle. Officer McMullen also informed Detective Carpenter of the suspected cocaine 

found in the vehicle. Detective Carpenter then approached Purvis, who was in handcuffs by this 

time, and asked him if his passenger “had given him anything illegal to hide during the traffic 

stop.” Purvis replied in the affirmative, and Detective Carpenter proceeded to search him. When 

Purvis lifted his right pant leg, a bag fell to the ground, containing what Detective Carpenter 

suspected was cocaine. A field-test confirmed Detective Carpenter’s suspicion. Purvis never 

revoked his consent for the search of the car or his person by either Officer McMullen or 

Detective Carpenter, nor did he limit the scope of these searches in any way. 

 Based on the cocaine found in the search of Purvis and his car, a search warrant was 

obtained and executed at Purvis’s home. There, police found more cocaine, as well as packaging 

material, cutting agents, and a scale. Purvis was charged with distribution of cocaine. Officer 

McMullen did not charge Purvis with the improper turn or with driving on a suspended license. 

 Purvis moved to suppress the items found in the search of his person, vehicle, and home, 

alleging that his rights under the Fourth Amendment were violated. The trial court denied his 

motion. Purvis then entered a conditional guilty plea to the charge. The trial court accepted the 

conditional guilty plea, convicted him, and sentenced him to fifteen years in the penitentiary, 

suspending six years. 

II. ANALYSIS

The Fourth Amendment to the United States Constitution states: 

The right of the people to be secure in their persons, houses, 

papers, and effects, against unreasonable searches and seizures, 

shall not be violated, and no Warrants shall issue, but upon 

probable cause, supported by Oath or affirmation, and particularly 

describing the place to be searched, and the persons or things to be 

seized. 
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 Purvis does not challenge the stop of his vehicle for a traffic infraction. Nor does he 

disagree that his operator’s license was suspended at the time he was stopped. Instead, Purvis 

argues that, “[h]aving elected to forgo further prosecution of the alleged traffic offenses, the 

officer’s extension of the stop to investigate possible drug offenses without a reasonable and 

articulable basis to do so constituted an impermissible seizure of [Purvis].” We disagree with the 

premise underlying the assignment of error. Viewing Officer McMullen’s actions objectively, 

we find that he had probable cause to arrest Purvis for driving on a suspended license, and thus 

to search his person incident to arrest. We also find that Officer McMullen obtained valid 

consent to search Purvis’s vehicle. As such, Officer McMullen needed no additional suspicion to 

justify the searches. 

A. STANDARD OF REVIEW

 In challenging a trial court’s ruling that a search was reasonable under the Fourth 

Amendment, “[t]he burden is on the defendant to show that the trial court committed reversible 

error.” Malbrough, 275 Va. at 168, 655 S.E.2d at 6. As an appellate court, “we give deference 

to the factual findings of the circuit court.” Bay v. Commonwealth, 60 Va. App. 520, 535, 729 

S.E.2d 768, 775 (2012) (quoting Brooks v. Commonwealth, 282 Va. 90, 94, 712 S.E.2d 464, 466 

(2011)). Those findings are binding on appeal unless “plainly wrong or unsupported by the 

evidence.” Malbrough, 275 Va. at 168, 655 S.E.2d at 7. However, “we independently determine 

whether the manner in which the evidence was obtained meets the requirements of the Fourth 

Amendment.” Bay, 60 Va. App. at 535, 729 S.E.2d at 775 (quoting Brooks, 282 Va. at 94, 712 

S.E.2d at 466). In making this independent determination, we apply a de novo standard of 

review to the overarching question of whether a seizure of evidence violated the Fourth 

Amendment. See Glenn v. Commonwealth, 275 Va. 123, 130, 654 S.E.2d 910, 913 (2008). 
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 We analyze law enforcement officers’ decisions regarding searches and seizures 

objectively. See Slayton v. Commonwealth, 41 Va. App. 101, 109, 582 S.E.2d 448, 451 (2003) 

(“Probable cause . . . turns only on ‘“objective facts,” not the “subjective opinion” of a police 

officer.’” (quoting Golden v. Commonwealth, 30 Va. App. 618, 625, 519 S.E.2d 378, 381 

(1999))). Generally speaking, in order for a warrantless search to be reasonable under the Fourth 

Amendment, it must be supported by probable cause or consent. See, e.g., Knight v. 

Commonwealth, 61 Va. App. 297, 312, 734 S.E.2d 716, 723-24 (2012). 

B. SEARCH OF PURVIS’S PERSON

1. Probable Cause to Arrest 

 Although Officer McMullen may have announced that he was subjectively unconcerned 

with Purvis’s suspended license, objectively, Officer McMullen still had probable cause to 

believe that Purvis was driving on a suspended license. Driving on a suspended license in 

violation of Code § 46.2-301 is a misdemeanor offense for which an officer may arrest a suspect. 

In Virginia v. Moore, 553 U.S. 164 (2008), the United States Supreme Court confirmed: “When 

officers have probable cause to believe that a person has committed a crime in their presence, the 

Fourth Amendment permits them to make an arrest . . . .” Id. at 178. 

 It is immaterial to our analysis that Officer McMullen may have had some other, 

subjective, reason for effecting a seizure of Purvis’s person, such as to investigate possible 

narcotics possession. An officer’s “subjective reason for making the arrest need not be the 

criminal offense as to which the known facts provide probable cause.” Devenpeck v. Alford, 

543 U.S. 146, 153 (2004). “[T]he Fourth Amendment’s concern with ‘reasonableness’ allows 

certain actions to be taken in certain circumstances, whatever the subjective intent.” Whren v. 

United States, 517 U.S. 806, 814 (1996); see also Poindexter v. Commonwealth, 16 Va. App. 

730, 731-34, 432 S.E.2d 527, 528-30 (1993) (holding that an officer who executed a traffic stop 
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for speeding, then developed probable cause to believe the suspect was driving on a suspended 

license, and had the suspect exit the vehicle for that reason, was permitted to seize the drugs 

located during a subsequent confrontation with the suspect, even though the officer never 

arrested the suspect for the traffic charges that initially justified his seizure of the suspect); 

Slayton, 41 Va. App. at 109, 582 S.E.2d at 452 (“The absence of probable cause to believe a 

suspect committed the particular crime for which he was arrested does not necessarily invalidate 

the arrest if the officer possessed sufficient objective information to support an arrest on a 

different charge.”). Accordingly, the objective existence of probable cause to arrest Purvis for 

driving on a suspended license rendered his ongoing seizure reasonable. 

2. Authority to Search Incident to Arrest 

 Having the objective authority to arrest Purvis, Officer McMullen also possessed the 

objective right to search Purvis incident to arrest. A suspect who has been arrested is subject to 

search of his person incident to that arrest, because police officers are permitted “to search the 

suspect in order to safeguard evidence and ensure their own safety.” Moore, 553 U.S. at 178; see 

Joyce v. Commonwealth, 56 Va. App. 646, 658, 696 S.E.2d 237, 243 (2010) (“The power to 

arrest is invariably coupled with the power to search incident to arrest.”); see also Moore, 553 

U.S. at 177 (“A custodial arrest of a suspect based on probable cause is a reasonable intrusion 

under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires 

no additional justification.” (quoting United States v. Robinson, 414 U.S. 218, 235 (1973))). 

 While “[i]t is axiomatic that an incident search may not precede an arrest and serve as 

part of its justification,” Sibron v. New York, 392 U.S. 40, 63 (1968) (emphasis added), a search 

may permissibly precede the arrest to which it is incident as long as the arrest is independently 

supported by probable cause. “A constitutionally permissible search incident to arrest ‘may be 

conducted by an officer either before or after the arrest.’” Joyce, 56 Va. App. at 657, 696 S.E.2d 
 - 7 - 

at 242 (quoting Italiano v. Commonwealth, 214 Va. 334, 336, 200 S.E.2d 526, 528 (1973)); see 

also Parker v. Commonwealth, 255 Va. 96, 105-06, 496 S.E.2d 47, 53 (1998) (“The United 

States Supreme Court has stated that ‘where the formal arrest followed quickly on the heels of 

the challenged search of petitioner’s person, we do not believe it particularly important that the 

search preceded the arrest rather than vice versa.” (quoting Rawlings v. Kentucky, 448 U.S. 98, 

111 (1980))). Although Officer McMullen did not immediately place Purvis in handcuffs or tell 

him that he was under arrest, opting instead to seek consent for a search, this does not affect the 

validity of the searches of Purvis’s person as incident to an arrest supported by probable cause. 

 Purvis was handcuffed, searched by Officer McMullen, and later searched by Detective 

Carpenter.4

 Regardless of the subjective reason behind Officer McMullen’s and Detective 

Carpenter’s searches of Purvis, those searches were justified by Officer’s McMullen’s objective 

authority to arrest Purvis for driving on a suspended license.5 As such, the searches of Purvis’s 

person were reasonable. 

 4

 The fact that the search of Purvis’s person that ultimately yielded the large bag of 

cocaine was conducted by Detective Carpenter, and not Officer McMullen, is a distinction of no 

legal significance in this case. The probable cause to search incident to arrest was lawfully 

conveyed from Officer McMullen to Detective Carpenter, because “it is not necessary for the 

officers actually making the arrest or conducting the search to be personally aware of those 

facts.” Lawson v. Commonwealth, 55 Va. App. 549, 555 n.2, 687 S.E.2d 94, 97 n.2 (2010) 

(quoting White v. Commonwealth, 24 Va. App. 234, 240, 481 S.E.2d 486, 489 (1997)). 

5

 We are unaware of any restriction upon law enforcement officers that would prevent 

multiple searches incident to arrest. See, e.g., United States v. Edwards, 415 U.S. 800, 804-05, 

808-09 (1974) (upholding, as incident to arrest, the seizure and search of an arrestee’s clothing, 

which was taken from him after he had spent the night in jail), quoted with approval in Williams 

v. Commonwealth, 259 Va. 377, 385-86, 527 S.E.2d 131, 135-36 (2000); Curd v. City Court, 

141 F.3d 839, 843 (8th Cir. 1998) (noting that “[t]he timeliness requirement for [searching] 

‘luggage or other personal property not immediately associated with the person of the arrestee’ is 

. . . constitutionally fairly strict” but that “searches of the person and [immediately associated] 

articles . . . are measured with a different, more flexible constitutional time clock” (emphasis 

added) (quoting United States v. Chadwick, 433 U.S. 1, 15 (1977))). 
 - 8 - 

C. Search of Purvis’s Vehicle 

 Officer McMullen’s search of Purvis’s vehicle is justified not as a search incident to 

arrest,6 but because Purvis granted Officer McMullen permission to search his vehicle. Purvis 

argues that this permission was tainted because, “McMullen lacked reasonable suspicion that 

[Purvis] was engaged in criminal activity at that time” and, thus, Purvis was under an illegal 

detention. We do not agree. 

 As we have already determined, Officer McMullen had objective probable cause to arrest 

Purvis. Accordingly, while Purvis may have been in custody when he gave consent to search his 

vehicle, he gave that consent during a lawful seizure rather than an unlawful one. See 4 Wayne 

R. LaFave, Search and Seizure § 8.2(b), at 92 (5th ed. 2012) (stating that where police have 

sufficient legal grounds for a seizure, “the consent is not cast into doubt merely because the 

police nonetheless pursued the consent alternative instead of making the seizure and then 

conducting the investigation incident thereto”). Consent, to be effective, “must be voluntarily 

given.” Elliott v. Commonwealth, 61 Va. App. 48, 54, 733 S.E.2d 146, 149 (2012). Whether 

consent is voluntary “is a question of fact to be determined from all the circumstances.” Bay, 60 

Va. App. at 535, 729 S.E.2d at 775 (quoting Ohio v. Robinette, 519 U.S. 33, 40 (1996)). The 

Commonwealth must prove voluntariness by a preponderance of the evidence. Gray v. 

 6

 The search of an arrestee’s vehicle no longer follows an arrest automatically, as a search 

incident to arrest. In Arizona v. Gant, 556 U.S. 332 (2009), the Supreme Court held that officers 

were permitted to conduct a warrantless search of a vehicle incident to arrest “only when (1) the 

arrestee is ‘within reaching distance of the vehicle’ during the search, or (2) ‘it is reasonable to 

believe the vehicle contains evidence of the offense of arrest.’” Rivera v. Commonwealth, 65 

Va. App. 379, 385, 778 S.E.2d 144, 147-48 (2015) (quoting Gant, 556 U.S. at 346). This 

holding overruled, in part, the Supreme Court’s decision in New York v. Belton, 453 U.S. 454 

(1981), “which held that ‘when a policeman has made a lawful custodial arrest of the occupant of 

an automobile, he may, as a contemporaneous incident of that arrest, search the passenger 

compartment of that automobile.’” Id. (quoting Belton, 453 U.S. at 459-60). In this instance, we 

have the consent of Purvis to search the vehicle, and need not assess this search as a search 

incident to arrest. 
 - 9 - 

Commonwealth, 233 Va. 313, 327, 356 S.E.2d 157, 164 (1987). “The mere fact that a defendant 

is in custody is not enough in itself to demonstrate a coerced consent to search.” Id. Rather, it is 

one fact among many that a court examines when it looks at “the totality of all the 

circumstances.” Id. (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973)). 

 At best (for Purvis), Officer McMullen implied that he might not charge Purvis with 

driving on a suspended license if Purvis consented to a search, but “promises have generally 

been found insufficient to overbear a defendant’s free will.” Rodgers v. Commonwealth, 227 

Va. 605, 616, 318 S.E.2d 298, 304 (1984). In United States v. Watson, 423 U.S. 411, 424 

(1976), the Supreme Court discussed some of the factors at play in an analysis of consent: 

There was no overt act or threat of force against Watson proved or 

claimed. There were no promises made to him and no indication 

of more subtle forms of coercion that might flaw his judgment. He 

had been arrested and was in custody, but his consent was given 

while on a public street, not in the confines of the police station. 

Moreover, the fact of custody alone has never been enough in itself 

to demonstrate a coerced confession or consent to search. 

See also LaFave, supra, § 8.2(b) (discussing factors for determining voluntariness of consent). 

 Some evidence at the suppression hearing was uncontradicted. The encounter occurred 

on the street, not in the station house. Only one officer interacted with Purvis, at least until after 

the consent was obtained. Nothing indicates that any law enforcement officer drew a gun or 

even raised a voice, or that anyone threatened Purvis in any way or asked him multiple times for 

consent. Other evidence, specifically that surrounding consent, was contested. Officer 

McMullen testified that Purvis gave consent for the search and did so before he exited the car, 

but Purvis testified that he did not give such consent and was handcuffed as soon as he exited the 

car. The trial court expressly resolved this conflict regarding consent against Purvis, announcing 

that “the contest of credibility has been won by the officers and not by Mr. Purvis.” Thus, the 

evidence, viewed under the appropriate legal standard, established that Purvis consented to the 
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search and was not in handcuffs when he did so. Later, the trial court said: “I do believe that 

they can ask for consent to search a car . . . .” Implicit in this factual finding is an 

acknowledgment that the consent was given voluntarily. The evidence, viewed in the light most 

favorable to the Commonwealth, supports this factual finding of the trial court by a 

preponderance. 

III. CONCLUSION

 The trial court did not err when it denied Purvis’s motion to suppress. The search of 

Purvis’s person was justified as a search incident to arrest, and the search of Purvis’s vehicle was 

consensual. Since both the search of the vehicle and the search of Purvis’s person were 

reasonable, the search of Purvis’s home by way of a search warrant based on the fruits of the 

roadside searches was valid as well.7

 We thus affirm Purvis’s conviction. 

Affirmed. 

 7

 See supra note 1.