COURT OF APPEALS OF VIRGINIA 

Present: Judges Annunziata, Bumgardner and Clements 

Argued by teleconference 

COMMONWEALTH OF VIRGINIA 

 MEMORANDUM OPINION* BY 

v. Record No. 2503-00-1 JUDGE JEAN HARRISON CLEMENTS 

 APRIL 23, 2001 

JOSHUA DICKSON 

 FROM THE CIRCUIT COURT OF THE CITY OF NEWPORT NEWS 

Randolph T. West, Judge 

 Thomas M. McKenna, Assistant Attorney General 

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

for appellant. 

 James B. Thomas for appellee. 

 Joshua Dickson stands indicted for possession of cocaine with 

intent to distribute in violation of Code § 18.2-248 and 

possession of a firearm while in possession of cocaine in 

violation of Code § 18.2-308.4(A). The Commonwealth appeals the 

trial court's pretrial ruling granting Dickson's motion to 

suppress evidence of a .38 caliber handgun and suspected crack 

cocaine found in Dickson's pockets during a warrantless search of 

his person by police. The Commonwealth contends the trial court 

erred in suppressing the evidence because, even though the search 

was conducted prior to the formal arrest of Dickson and even 

though the search was incident to an "arrest" for what normally is 

 

* Pursuant to Code § 17.1-413, this opinion is not 

designated for publication.
a summonsable offense, the officers had probable cause at the time 

of the search to arrest Dickson for unlawfully possessing 

fireworks and the search was justifiable to protect the officers' 

safety and to preserve or discover evidence of Dickson's illegal 

possession of fireworks. For the reasons that follow, we reverse 

the trial court's suppression of the evidence. 

 As the parties are fully conversant with the record in this 

case and because this memorandum opinion carries no precedential 

value, this opinion recites only those facts necessary to a 

disposition of this appeal. 

 In a pretrial appeal of a ruling on a motion to suppress, we 

view the evidence in the light most favorable to the prevailing 

party, Dickson in this case, granting to him all reasonable 

inferences fairly deducible therefrom. See Commonwealth v. 

Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991). 

"'Ultimate questions of reasonable suspicion and probable cause to 

make a warrantless search' involve questions of both law and fact 

and are reviewed de novo on appeal." McGee v. Commonwealth, 25 

Va. App. 193, 197, 487 S.E.2d 259, 261 (1997) (en banc) (quoting 

Ornelas v. United States, 517 U.S. 690, 691 (1996)). However, "we 

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." Id. at 198, 487 

S.E.2d at 261 (citing Ornelas, 517 U.S. at 699). 

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 The trial court found that the search of Dickson was unlawful 

because (1) it was conducted before Dickson was formally arrested 

and (2) it went "too far" in a case where normally a summons would 

be issued. The Commonwealth first argues that the search of 

Dickson was legal because the officers had probable cause when the 

search was conducted to arrest Dickson for illegal possession of 

fireworks. 

 "'When an officer has probable cause to arrest a person, the 

officer may search the person . . . .'" Williams v. Commonwealth, 

21 Va. App. 263, 267, 463 S.E.2d 679, 681 (1995) (quoting Buck v. 

Commonwealth, 20 Va. App. 298, 304, 456 S.E.2d 534, 537 (1995)). 

"Probable cause to arrest must exist exclusive of the incident 

search. So long as probable cause to arrest exists at the time of 

the search, however, it is unimportant that the search preceded 

the formal arrest if the arrest 'followed quickly on the heels of 

the challenged search.'" Carter v. Commonwealth, 9 Va. App. 310, 

312, 387 S.E.2d 505, 506-07 (1990) (quoting Wright v. 

Commonwealth, 222 Va. 188, 193, 278 S.E.2d 849, 852-53 (1981) 

(internal quotations omitted)). "In addition, if the police have 

probable cause to effect an arrest, a limited search may be 

justified even in the absence of a formal arrest." Poindexter v. 

Commonwealth, 16 Va. App. 730, 733, 432 S.E.2d 527, 529 (1993).

 "Probable cause exists when the facts and circumstances 

within the arresting officer's knowledge and of which [the 

officer] has reasonably trustworthy information are sufficient in 

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themselves to warrant a [person] of reasonable caution in the 

belief that an offense has been or is being committed." Schaum v. 

Commonwealth, 215 Va. 498, 500, 211 S.E.2d 73, 75 (1975). 

"Probable cause is assessed by considering the totality of the 

circumstances pertaining to the facts known to the officer at the 

time." United States v. Sokolow, 490 U.S. 1, 9-10 (1989). 

 Here, Officers Gayle and Berryman were on bike patrol when 

they heard firecrackers going off. Their dispatch had also 

relayed a report of suspected shots being fired in the area. The 

officers followed the noise of the fireworks to an area where they 

saw Dickson and a group of other people. Officer Gayle observed 

Dickson with a lighter in his hand, preparing to light a 

firecracker. Officer Berryman observed Dickson light a 

firecracker and throw it in the air. Plainly, these 

circumstances, witnessed by the officers, warranted the belief by 

a person of reasonable caution that Dickson was unlawfully using 

fireworks in violation of Code §§ 59.1-142 and 59.1-145.1 The 

officers therefore had probable cause to arrest Dickson without a 

warrant prior to conducting the challenged search. 

 1

 Officer Gayle testified that he originally intended to 

charge Dickson with possession of fireworks under the City of 

Newport News Code § 16-20; however, neither the charging 

document nor the applicable section of the city code were made a 

part of the record on appeal. We therefore base our analysis on 

Dickson's unlawful use of fireworks in violation of Code 

§§ 59.1-142 and 59.1-145. 

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 Officer Gayle testified that, after observing Dickson 

preparing to light a firecracker, he "was going to arrest him for 

the possession of fireworks," but he did not put handcuffs on 

Dickson or inform him he was under arrest at that point. Gayle 

had Dickson step away from the crowd and started checking his 

pockets because he "had reason to believe that [Dickson] had more 

fireworks on his person" and he wanted "to recover those 

fireworks." Incident to that search, Gayle found a .38 caliber 

handgun in Dickson's left rear pocket. Gayle immediately placed 

Dickson "in custody for concealed weapon [sic] and for [Gayle's] 

safety" and continued his search of Dickson's pockets. He then 

found a plastic bag containing "eleven individually wrapped pieces 

of" suspected crack cocaine in Dickson's watch pocket. Following 

the search, Gayle arrested Dickson on the fireworks offense, in 

addition to the other charges.2

 We hold, therefore, that, because probable cause to arrest 

existed at the time of the search and because the arrest followed 

quickly on the heels of the challenged search, the search was not 

unconstitutional solely because it had been conducted prior to 

Dickson's formal arrest. 

 Our analysis, however, does not end there. The trial court 

also determined that the search of Dickson's person was illegal 

because the search was not conducted incident to a lawful 

 2

 The fireworks charge was, Gayle believed, later "nolle 

prossed down in criminal court." 

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custodial arrest, but incident to a misdemeanor arrest requiring 

only the issuance of a summons rather than a custodial arrest. 

Officer Gayle, in fact, testified that a suspect in possession of 

fireworks would not "normally" be taken into custody, but would be 

given a summons and released. 

 Code § 19.2-74(A)(1) provides that an arresting officer who 

has custody or detention of a person for certain misdemeanor 

offenses, including unlawful use of fireworks, shall issue the 

person a summons and, upon his written promise to appear in 

compliance with the summons, shall release that person from 

custody. However, that section, in conjunction with Code 

§ 19.2-82, permits an officer to effect a warrantless custodial 

arrest if the person fails or refuses to discontinue the unlawful 

act or refuses to give a written promise to appear, or if the 

officer reasonably believes the person will likely disregard the 

summons or will likely do harm to himself or others. 

 Viewed in the light most favorable to Dickson, the evidence 

does not support a finding that any of the circumstances 

permitting a lawful custodial arrest under Code § 19.2-74(A) 

existed here. Thus, we must conclude that, in this case, the 

officers could have issued only a summons to Dickson in connection 

with his arrest for unlawful use of fireworks. 

 Following the rationale of the Supreme Court in Knowles v. 

Iowa, 525 U.S. 113 (1998), the Supreme Court of Virginia held in 

Lovelace v. Commonwealth, 258 Va. 588, 522 S.E.2d 856 (1999), that 

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"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, 522 S.E.2d at 860. 

Code § 19.2-74 does not 

contemplate[] a custodial situation 

equivalent to an actual custodial arrest. 

Under that statute, a suspect is detained, or 

in the custody of the police officer, only 

long enough for the officer to take down the 

name and address of the person and issue a 

summons. . . . Thus, the threat to officer 

safety is less. 

Id.

 However, the Court recognized in Lovelace that concerns for 

officer safety or the need to preserve or discover evidence could 

warrant an additional intrusion. Id. at 594, 522 S.E.2d at 859. 

Such an intrusion, though, must be "limited to what is necessary 

to answer" those specific concerns and needs. Id. The Court 

applied such rationale in Lovelace as follows: 

 Next, assuming without deciding that 

there was a need to discover evidence or a 

threat to the officers' safety, we conclude 

that the extent of [the officer's] search 

exceeded the scope necessary to accomplish 

either of those objectives. Once [the 

officer] conducted his "patdown" of Lovelace 

and felt nothing similar to a weapon, any 

reasonable concern for officer safety was 

resolved. Likewise, [the officer] did not 

testify that he felt something that was 

evidence related to Lovelace's drinking an 

alcoholic beverage in public. Instead, he 

felt a "squooshy" bag. In other words, [the 

officer] did not "reasonably believe" that 

the bag was either a weapon or evidence 

related to Lovelace's alleged alcohol 

offense. Thus, [the officer's] subsequent 

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reach into Lovelace's pocket to retrieve the 

"squooshy" bag was not in furtherance of 

either officer safety or the preservation of 

evidence. Once [the officer] satisfied 

himself that Lovelace did not have a weapon 

or evidence of an alcohol offense on his 

person, the officer had no basis to continue 

his search. 

 

Id. at 596-97, 522 S.E.2d at 860. 

 Here, Officer Gayle was authorized by Code § 19.2-74(A)(1) 

only to issue Dickson a summons for the unlawful use of fireworks. 

Accordingly, the search of Dickson's person incident to that 

non-custodial arrest was unjustified unless concerns for officer 

safety or the need to preserve or discover evidence warranted such 

an additional intrusion. Moreover, if such a search was warranted 

for those reasons, it had to have been limited to what was 

necessary to answer those specific concerns and needs. We hold 

that the search by Gayle of Dickson's person was warranted under 

the circumstances and was properly limited to accomplish the 

permissible objectives set forth in Lovelace. 

 There was, in this case, a definite concern for the officers' 

safety as well as the need to preserve and discover evidence. En 

route to the area where illegal fireworks were being ignited, 

Officers Gayle and Berryman received a report from dispatch of 

suspected gunshots in the same area. Upon their arrival at the 

scene, the officers observed Dickson in the act of lighting 

firecrackers. This evidence, we believe, supports a finding that 

the officers were entitled to reasonably conclude that Dickson was 

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armed possibly with a gun and certainly with additional 

firecrackers and lighting instruments which constituted a threat 

to their safety. Furthermore, Officer Gayle, we believe, was 

entitled to reasonably conclude that a search of Dickson's pockets 

would yield or preserve further evidence of his illegal use of 

fireworks. 

 Additionally, unlike in Lovelace where the officer felt 

nothing during his "patdown" of the suspect similar to a weapon or 

evidence related to the original offense, Gayle's search of 

Dickson's person revealed a .38 caliber revolver in Dickson's rear 

pocket and suspected crack cocaine in his front pocket. We find 

that, because the suspected cocaine was eleven individually 

wrapped pieces of crack cocaine, rather than a "squooshy" bag like 

the drugs found on Lovelace, Gayle could reasonably have concluded 

when he felt the suspected cocaine in Dickson's pocket that it was 

evidence related to Dickson's unlawful use of fireworks. Hence, 

Gayle's retrieval of the handgun and drugs from Dickson's pockets 

was in furtherance of the limited permissible objectives of 

officer safety and the preservation or discovery of evidence. 

 We hold, therefore, that the search of Dickson was consistent 

with the Fourth Amendment. Consequently, the trial court erred in 

suppressing the Commonwealth's evidence. 

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 Accordingly, we reverse the trial court's suppression of the 

evidence and remand this case for further proceedings consistent 

with this opinion, if the Commonwealth be so advised. 

 Reversed and remanded. 

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