COURT OF APPEALS OF VIRGINIA
Present: Judges Ann unziata, Humphreys and Felton Argued by teleconference

COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION * BY v. Record No. 1349-04-2 JUDGE ROSEMARIE ANNUNZIATA NOVEMBER 16, 2004 TRAEON LAVAUGH HILL

FROM THE CIRCUIT COURT OF CHESTERFIELD COUNTY Cleo E. Powell, Judge Robert H. Anderson, III, Senior Assistant Attorney General (Jerry W. Kilgore, Attorney General, on brief), for appellant. Gregory R. Sheldon (Goodwin , Sutton & DuVal, on brief), for appellee.
The Commonwealth appeals a ruling by th e trial court granting Traeon Lavaugh Hill’s motion to suppress evidence obtained during a wa rrantless search of hi s hotel room. The Commonwealth argues that the trial court incorr ectly determined that the evidence was not obtained pursuant to a valid sear ch incident to Hill’s arrest. For the following reasons, we

reverse. I. Background Under well-established principles, we view the evidence and all reasonable inferences that may be drawn from the evid ence in a light most favorable to Hill, as the party prevailing below. Commonwealth v. Grimstead , 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). So viewed, the evidence establishes that on A ugust 28, 2003, Chesterfield County police officers Godsey and Bunker executed a search warrant in Room 126 of the Inters tate Inn. The search

* Pursuant to Code § 17.1-413, this opin ion is not designated for publication.- 2 - warrant was obtained on the basis of information provided by an in formant that “a large quantity of marijuana” would be f ound in the hotel room. When Godsey and Bunker first entered the hot el room, no one was present. Inside, they observed four “partially smoked cigars” and a plastic cup “that had a little b it of loose residue in it.” The officers left the hotel but returned late r that night. Upon their return to the hotel, the officer s saw a man knocking on the door of Room 126. Godsey approached the man, who informed him that he was not staying in the room but had been invited there. Godsey stood to the right of the man and witnessed someone inside the hotel room pull the curtain, look at the man who knocked, and open the door. Godsey moved to the front of the door and noticed “a very strong odor of marijuana.” The man who opened the door tried to close it, but Godsey thrust his foot into the doorway and pushed his way into the room. As he entere d the room, Godsey displayed his badge and identified himself as a police officer. Once in the room, Godsey saw several bags of marijuana in plain view and noticed that the room had four occupants. One of the occupants, Hill, went “across” th e room’s two double beds, picked up a “black item” that Godsey believed could be a weapon, and ran towards the bathroom. Godsey grabbed Hill and directed him to show his hands. Because Hill failed to show his hands, Godsey placed his foot on Hill’s back, forced him to the ground , and handcuffed him. Hill was subdued at the foot of the second bed, described by Godsey as th e bed closest to the bathroom. At the time Hill was subdued, the three other occupants of the room had either been handcuffed or were “lying prone.” After subduing Hill, Godsey searched the second bed. Godsey explained that he “went to that bed because of [Hill] grabbing an object an d not knowing what it was. I wanted to make sure there were no weapons there.” Godsey pulle d back the sheet from the bed and discovered a- 3 - handgun and cocaine. On the floor near the side of the bed, Godsey discovered a digital scale, the black object he saw Hill grab as he ran to wards the bathroom. Godsey took the handgun into his possession to ensure officer safety and pl aced the cocaine on top of the bed. The officer obtained a second search warrant for the r oom, which was based upon his discoveries, and thereafter recovered the cocai ne and the digital scale. Hill filed a motion to suppress the evidence based on Godsey’s warrantless search of the room incident to Hill’s arrest. Hill argued that, under Chimel v. California , 395 U.S. 752 (1969), the search incident to his arrest violated the Fourth Amendment because it was not limited to the area within his immediate control. The trial co urt granted the motion to suppress, ruling that under the facts of this case, wh ere the gun and drugs are under the second bed [closest to the bathr oom], Mr. Hill is on the floor by the first bed in handcuffs, that the items that were seized were not within his area of control and were not subject to the search incident to arrest. So, with re gard to that prong the motion to suppress is granted. This appeal followed. II. Analysis In reviewing a trial court’s decision on a motion to suppress, we are bound by its findings of historical fact unless they are plainly wrong. McNair v. Commonwealth , 31 Va. App. 76, 82, 521 S.E.2d 303, 306 (1999). “However, we consider de novo whether those facts implicate the Fourth Amendment and, if so, whether the office rs unlawfully infringed upon an area protected by the Fourth Amendment.” Id. A. The Search Was Properly Confined to the Area within Hill’s Immediate Control 1. We begin our analysis of the legality of th e search by correcting a factual error made by the trial court. In its ruling granting the moti on to suppress, the trial court found that Hill was subdued “on the floor by the first bed.” Although we normally defer to the trial court’s factual- 4 - findings on appeal, the finding here is not supported by any evidence. See id. Godsey testified repeatedly that he subdued and arrested Hill near the foot of the second bed. Godsey’s testimony is the only evidence in the record regarding th e locus of Hill’s arrest. In short, no evidence supports the trial court’s finding that Hill was su bdued “on the floor by the first bed.” Rather, the evidence supports only one conclusion: Hi ll was subdued and arrested at the foot of the second bed. 2. It is not disputed in this a ppeal that Hill was lawfully arre sted. A lawful arrest empowers the police to conduct a search of “the area ‘within [the arrestee’s] immediate control.’” Chimel , 395 U.S. at 763. We review de novo whether the facts support the trial court’s legal conclusion that the search was invalid. See McNair , 31 Va. App. at 82, 521 S.E.2d at 306. The “area within [the arrestee’s] immediate control” standard originated in Chimel , where the Supreme Court considered a defendant’s challenge to a police search of his entire house. In that case, the police arrested the defendant when he walked into his house. Id. at 753. “[T]he officers then looked through the entire three-bedroom house, including the attic, the garage, and a small workshop,” recovering vari ous incriminating items of evidence. Id. at 754. The Court disapproved the police ru mmaging, noting that “[t]here is no . . . justification . . . for routinely searching any room other than that in which an arrest occurs—or, for that matter, for searching through all the desk drawer s or other closed or concealed ar eas in that room itself.” Id. at 763. The Court determined there was “ample ju stification,” however, “f or a search of the arrestee’s person and the area ‘within his immediate control.’” Id. The Court concluded that “[t]he only reasoned distinction is one between a search of the person arrested and the area within his reach on the one hand, and more extensive searches on the other.” Id. at 766.- 5 - Relying on Chimel , we upheld the search of a hotel room incident to the defendant’s arrest in Archer v. Commowealth , 26 Va. App. 1, 9, 492 S.E.2d 826, 830 (1997). In that case, the police entered the hotel room where Archer was staying and arre sted him on outstanding warrants. Id. at 10, 492 S.E.2d at 830-31. After removi ng Archer from the hotel room, the police learned that a knife and gun we re under the mattress inside. Id. at 7, 492 S.E.2d at 829. The police returned to the room, searched it, and recovered the knife and gun. Id. Because the search occurred contemporaneous to the arrest an d was limited to the hotel room where the arrest took place, we held that Archer’s Fourth Amendment rights were not violated. Id. at 11, 492 S.E.2d at 831. Similarly, courts from other jurisdictions have upheld the search of a room incident to arrest where the arrest occurred in that room. See, e.g. , United States v. Silva , 754 F.2d 840, 843, 847 (4th Cir. 1984) (upholding search of hot el room that recove red a bag containing incriminating evidence because “there can be no dispute that the zippered bag was in the immediately surrounding area”); People v. Hufnagel , 745 P.2d 242, 246 (Colo. 1987) (upholding search of end table near sofa wh ere defendant was arrested becaus e “the sofa and end table were within the defendant’s immediat e control”); State v. Cherry , 257 S.E.2d 551, 558 (N.C. 1979) (upholding search under rug in motel room because “[t]he nine by twelve foot motel room was an area under defendant’s immedi ate control”); State v. Austin , 584 P.2d 853, 856 (Utah 1978) (upholding search of wastebasket in hotel room because the “search was properly confined to a limited area within the [defendant’s] control”). In light of these authorities, we have little difficulty concluding th at the search conducted in this case occurred within an area subject to Hi ll’s immediate control. Hill was arrested at the foot of the second bed. The limited search of the second bed and of the area surrounding it was therefore lawful.- 6 - B. That Davis Was Handcuffed Before the Search Began Does Not Invalidate the Search We also find that the trial court erred to the extent its de cision turned on Hill’s handcuffed status when the search occurred. Due to the “danger inherent in any custodial arrest[,] . . . a search incident to arrest is cons titutional even if the arre stee is handcuffed prior to the search” so long as the search is co ntemporaneous to the arrest. Hufnagel , 745 P.2d at 246, 247-248 (relying on pronouncement fro m United States v. Chadwick , 433 U.S. 1, 14-15 (1977), that the “potential dangers lurking in all custodi al arrests make warrantless searches of items within the ‘immediate control’ ar ea reasonable without requiring the arresting officer to calculate the probability that weapons or dest ructible evidence may be involved”); 1 Archer , 26 Va. App. at 9, 492 S.E.2d at 830 (noting that a search of the immediately surrounding area incident to an arrest is valid “even . . . after the arrestee ha s been restrained, as long as the search is contemporaneous with the arrest”); see also United States v. Parra , 2 F.3d 1058, 1067 (10th Cir. 1993) (upholding search of pillow conducted after defendant was handcuffed “[a]lthough hindsight suggest[ed] [t he defendant] had little chance of r eaching under the . . . pillow”); United States v. Turner , 926 F.2d 883, 887-88 (9th Cir. 1991) (upholding search of room where defendant was arrested although defendant had be en placed in handcuffs and removed from the room before the search was pe rformed); United States v. Queen , 847 F.2d 346, 353-54 (7th Cir.

1 The Hufnagel court further explained the rationale behind its holding: Arrests are necessarily tense, ri sky events when many things are happening at once. The difficulty of imposing an orderly chronology after the fact is apparent in this case. Police officers, who must act quickly, cannot reas onably be expected to pay attention to the exact time at whic h the arrestee is handcuffed and then to make an accurate guess as to how much a reviewing court will think the handcuffs restrict that particular arrestee’s “lunging” distance under all the circumstances. Hufnagel , 745 P.2d at 247.- 7 - 1988) (upholding search of closet three feet from arrestee even though arrestee was in handcuffs and guarded by armed police officers); Foster v. State , 464 A.2d 986, 1001 (Md. 1983) (upholding search of nightstand even though defendant was handcuffed nearby); Cherry , 257 S.E.2d at 558 (holding that “[t]he fact that defendant was handcuffed did not affect the lawfulness of the” search incident to the arrest); People v. Fitzpatrick , 300 N.E.2d 139, 143 (N.Y. 1973) (rejecting defendant’s contention that the search of the closet where he was hiding was invalid because he had been removed from the room and placed in handcuffs before the search was conducted); cf. Glasco v. Commonwealth , 257 Va. 433, 439-41, 513 S.E.2d 137, 140-42 (1999) (upholding search of automobile as va lid incident to the arre st of defendant even though the defendant was detained in the back of a police cruiser and “thus arguably not in a position to seize a weapon or destroy evidence”); Albert v. Commonwealth , 2 Va. App. 734, 738-39, 347 S.E.2d 534, 536-37 (1986) (upholding search of briefcase found on the floor next to bed where defendant was arrested even though defendant was “hel d at gun point by three police officers”). Here, the search of the bed was contemporane ous to Hill’s arrest and was therefore valid, notwithstanding the handcuffs limiting his mobility when the search was performed. For the foregoing reasons, we reverse the decision of the trial court granting Hill’s motion to suppress. Reversed

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