COURT OF APPEALS OF VIRGINIA

Present: Ju dges Annunziata, Bumg ardner and Clements Argued by te leconference

COMMONWEALTH OF VIRGINIA MEMORANDUM OPINION * BY v. Record No. 2503-00-1 JUDG E 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, Assistan t Attorney General (Mark L. Earley, Attorney General, on brief), for appellant. James B. Thomas for appellee.

Joshua Dickson stands indicted for possessi on of coca ine 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 pr etrial ruling granting Dickson's motion to suppress evidence of a .38 caliber handgu n and suspec ted crack cocaine found in Dickso n's pockets duri ng a warrantles s search of his person by po lice. The Common wealth contends the trial court erred in suppressing th e evidence because, ev en though the search was conducted prio r to the formal arrest of Dickso n and even though the search was in cident to an "arrest" for what normally is

* Pursuant to Code § 17.1-413, this opinion is not designated for publication.a summonsable offe nse, the officers had prob able cause at the time of the search to ar rest Dickson for unla wfully possessing fireworks and the search was justifiable to protect th e officers' safety and to preserve or discover evidence of Dickso n's illegal possession of fi reworks. For th e reasons that fo llow, we reverse the trial court's suppression of the evidence. As the parties are fu lly conversant with the record in this case and because this memorandum opinion carr ies no precedential value, this opinion recites only those fa cts necess ary to a disposition of this appeal. In a pretrial appeal of a ruling on a mo tion to su ppress, we view the evidence in the light most favorabl e to the prevailing party, Dickson in this case, granting to him all re asonable inferences fairly de ducible ther efrom. 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 sear ch' involve ques tions 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, 26 1 (1997) ( en banc ) (quoting Ornelas v. Un ited States , 517 U.S. 690, 691 (1 996)). Ho wever, "we are bound by the trial court's findings of historical fact unless 'plainly wrong' or wi thout evidence to support them and we give due weight to th e inferences drawn from those facts by resident judges and local law enforcement of ficers." Id. at 198, 487 S.E.2d at 261 (citing Ornelas , 517 U.S. at 699).

- 2 -The trial court found that the search of Dickson wa s unlawful because (1) it was cond ucted before Dickson wa s formally arrested and (2) it went "too fa r" in a case where no rmally a summons would be issued. The Common wealth first argues that the search of Dickson was legal because the office rs had probable cause when the search was conducted to arrest Dickson for il legal posses sion of fireworks. "'When an offi cer has probable cause to arrest a person, the officer may sear ch the person . . . .'" Williams v. Commonwealth , 21 Va. App. 263, 26 7, 463 S.E.2d 679, 681 (1995) (quoting Buck v. Commonwealth , 20 Va. App. 298, 304, 456 S.E.2d 534, 53 7 (1995)). "Probable cause to arrest must ex ist exclusive of the incident search. So long as probable cause to arrest exists at the time of the search, howeve r, it is unimpo rtant that the se arch preceded the formal arrest if the arrest 'followed qu ickly on the heels of the challenged search.'" Carter v. Commonwealth , 9 Va. App. 310, 312, 387 S.E.2d 505, 50 6-07 (1990) (quoting Wright v. Commonwealth , 222 Va. 188, 193, 278 S.E.2d 849, 852-53 (1981) (internal quotat ions omitted)). "In addition, if the police have probable cause to ef fect an arrest , a limited se arch may be justified even in the absence of a fo rmal arrest." Poindexter v. Commonwealth , 16 Va. App. 730, 733, 432 S.E.2d 527, 529 (1993). "Probable cause ex ists when the fact s and circ umstances within the arresting officer's know ledge and of which [the officer] has reasonably trustworthy in formation are su fficient in

- 3 -themselves to wa rrant a [person] of reasonable caution in the belief that an offe nse has been or is being comm itted." Schaum v. Commonwealth , 215 Va. 498, 50 0, 211 S.E.2d 73 , 75 (1975). "Probable cause is assessed by co nsidering the to tality of the circumstances pertaining to the facts known to th e officer at the time." United States v. Sokolow , 490 U.S. 1, 9-10 (1989). Here, Officers Gayle and Berrym an were on bike patrol when they heard firecracke rs going off. Thei r dispatch had also relayed a report of suspected shot s being fired in the area. The officers followed the no ise of the fireworks to an area where they saw Dickson and a group of other people. Officer Gayl e observed Dickson with a lighter in hi s hand, preparin g to light a firecracker. Officer Berryman observed Dickson light a firecracker and throw it in the air. Pl ainly, these circumstances, witnesse d by the office rs, warranted th e belief by a person of reas onable caution that Dick son was unlawf ully using fireworks in violatio n of Code §§ 59.1 -142 and 59.1-145. 1 The officers therefore had probable cause to arre st Dickson without a warrant prior to conducting the chal lenged 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.

- 4 -Officer Gayle testified that, after observing Dickson preparing to light a fi recracker, he "was going to arrest him for the possession of fireworks," bu t he did not pu t handcuffs on Dickson or inform him he was under ar rest at that point. Gayle had Dickson step away from the crowd an d started ch ecking his pockets because he "had reason to believe that [D ickson] had more fireworks on his person" and he wanted "to recover those fireworks." Incident to that search, Gayl e found a .3 8 caliber handgun in Dickson's le ft rear pocket. Gayl e immediatel y placed Dickson "in custod y for concealed weapon [sic] an d for [Gayle's] safety" and contin ued his search of Dickson's pocket s. He then found a plastic ba g containing "eleven indi vidually wrapped pieces of" suspected crac k cocaine in Dickson's wa tch pocket. Following the search, Gayle arrested Dickson on the fireworks of fense, in addition to th e other charges. 2 We hold, therefore, that, because probable cause to arrest existed at the time of the search and becaus e 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 form al arrest. Our analysis, ho wever, does not end th ere. The trial court also determined that the search of Dickson's personwas illegal because the sear ch was not conducted in cident to a lawful

2 The fireworks charge was, Gayle believed, later "nolle prossed down in criminal court." - 5 -custodial arrest, but incident to a misdemeanor arrest requiring only the issuance of a summons rather than a custod ial arrest. Officer Gayle, in fact, testified that a suspect inpossession of fireworks would no t "normally" be taken into custod y, but would be given a summons and released. Code § 19.2-74(A)(1 ) provides that an arresting of ficer who has custody or detention of a person for cert ain misdemeanor offenses, incl uding unlawful us e of fireworks, shall issue the person a summons and, upon his written pr omise to appear in compliance with the summons, shall releas e that person from custody. Howeve r, that section, in conjunction with Code § 19.2-82, permits an officer to effect a warrantless custodial arrest if the pe rson fails or re fuses to disconti nue the unlawful act or refuses to give a written promise to appear, or if the officer reason ably believes the person will likely disregard the summons or will li kely 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 circ umstances 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 issu ed only a summons to Dickson in connection with his arrest for unla wful use of fireworks. Following the ra tionale of the Su preme Court in Knowles v.

Iowa , 525 U.S. 113 (1998) , the Supreme Co urt of Virginia held in Lovelace v. Commonwealth , 258 Va. 588, 522 S.E. 2d 856 (1999), that - 6 -"an 'arrest' that is effected by issuing a citati on or summons rather than taking th e suspect into custody does not, by itself, justify a full fiel d-type search." Id. at 596, 522 S. E.2d at 860. Code § 19.2-74 does not contemplate[] a cu stodial si tuation equivalent to an actu al custodia l arrest. Under that statute, a su spect is detained, or in the custody of the police officer, only long enough for the offi cer to take down the name and address of th e person and issue a summons. . . . Thus, the threat to officer safety is less. Id. However, the Cour t recognized in Lovelace that concerns for officer safety or the need to pres erve or discover evidence could warrant an addition al intrusion. Id. at 594, 522 S. E.2d at 859. Such an intrusion, though, must be "limited to wh at is necessary to answer" those specific concerns and needs. Id. The Court applied such rationale in Lovelace as follows: Next, assuming with out deciding that there was a need to discover evidence or a threat to the officers' safety , we conclude that the extent of [t he officer's] search exceeded the scope nece ssary to accomplish either of thos e objectives. Once [the officer] conducted his "patdown" of Lovelace and felt nothing simi lar to a weapon, any reasonable concern fo r officer sa fety was resolved. Likewise, [t he officer] did not testify that he felt someth ing that was evidence related to Lo velace's drinking an alcoholic bevera ge in public. Instead, he felt a "squooshy" bag. In other words, [the officer] did not "reaso nably believe" that the bag was eith er a weapon or evidence related to Lovelace 's alleged alcohol offense. Thus , [the officer' s] subsequent

- 7 -reach into Lovelace's po cket to retrieve the "squooshy" bag was no t in furtherance of either officer safety or the preser vation of evidence. Once [the officer] satisfied himself that Lovelace did not have a weapon or evidence of an al cohol offens e on his person, the offi cer had no basi s to continue his search. Id. at 596-97, 522 S.E.2d at 860. Here, Officer Gayle was author ized by Code § 19.2-74(A)(1) only to issue Dick son a summons for the unlawful use of fireworks. Accordingly, the search of Dick son's person inci dent to that non-custodial arrest was unjust ified unless conc erns 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 th ose specific concerns and needs. We hold that the search by Ga yle of Dickson's person was warran ted under the circumstance s and was proper ly limited to accomplish the permissible ob jectives set forth in Lovelace

. There was, in this case, a de finite concern fo r the officers' safety as well as the need to pres erve and discover evidence. En route to the area wh ere illegal fire works were being ignited, Officers Gayle and Berr yman received a report from dispatch of suspected guns hots in the same area. Upon their ar rival at the scene, the officers observed Di ckson in the ac t of lighting firecrackers. Th is evidence, we believe, supports a finding that the officers were entitled to reas onably conclude that Dickson was

- 8 -armed possibly witha gun and certainl y with additional firecrackers and lighti ng instruments which constitu ted a threat to their safety. Furthermore, Officer Gayle, we believe, was entitled to reason ably conclude that a sear ch of Dickso n's pockets would yield or preserve further eviden ce of his il legal use of fireworks. Additionally , unlike in Lovelace where the of ficer felt nothing during his "pat down" of the suspect si milar to a weapon or evidence related to the original offense, Gayle's search of Dickson's person revealed a .38 caliber re volver in Di ckson's rear pocket and suspected cr ack cocaine in his fron t pocket. We find that, because the suspected coca ine was eleven individually wrapped pieces of crack cocaine, ra ther than a "squ ooshy" bag like the drugs found on Lovelace, Gayle could reason ably have concluded when he felt the suspec ted cocaine in Dickson' s pocket that it was evidence related to Di ckson's unlawful use of firewo rks. Hence, Gayle's retrie val of the handgu n and drugs from Dickson's pockets was in furtherance of the limi ted permissible objectives of officer safety and the preservation or discovery of evidence. We hold, therefore, that the search of Di ckson was co nsistent with the Fourth Amendm ent. Conseque ntly, the trial court erred in suppressing the Commonwealth 's evidence.

- 9 -Accordingly, we re verse the trial court's suppre ssion of the evidence and remand th is case for further pr oceedings co nsistent with this opinion, if the Commonwealth be so advised. Reversed and remanded.

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