PRESENT: All the Justices 

BRADLEY WILLIAM MCGHEE 

 OPINION BY 

v. Record No. 091274 JUSTICE WILLIAM C. MIMS 

 November 4, 2010 

COMMONWEALTH OF VIRGINIA 

FROM THE COURT OF APPEALS OF VIRGINIA 

In this appeal we review a conviction for possession of 

cocaine with the intent to distribute. We consider whether 

police officers had probable cause to arrest appellant Bradley 

William McGhee (“McGhee”) for violating Code § 18.2-388 (public 

intoxication) and whether the officers conducted a valid search 

of McGhee’s vehicle. 

McGhee was convicted in a jury trial in the Circuit Court 

for the City of Danville of public intoxication and possession 

of cocaine with intent to distribute. He was sentenced to a 

$250 fine for public intoxication and to 10 years imprisonment 

and a $5000 fine for possession with intent to distribute. 

McGhee appealed his convictions to the Court of Appeals. 

He argued that there was no probable cause to arrest him for 

public intoxication and the vehicle search violated his Fourth 

Amendment rights. The Court of Appeals denied McGhee’s 

petition, holding that there was probable cause and the vehicle 

search was a valid search incident to arrest. We awarded 

McGhee an appeal. 
We will state the evidence in the light most favorable to 

the Commonwealth, the prevailing party in the circuit court.1 

Jones v. Commonwealth, 279 Va. 52, 55, 688 S.E.2d 269, 270 

(2010). On the evening of December 18, 2007, Officer Karen 

Dalton of the Danville Police Department was on patrol. At 

11:15 p.m. she observed two vehicles parked beside a 

restaurant. The headlights of one vehicle were on and its 

brake lights glowing. A person subsequently identified as 

McGhee was visible in the driver’s seat. After learning that 

the restaurant had closed at 9:30 p.m., she exited her cruiser 

and approached the vehicle. She then saw a female passenger 

lift her head out of McGhee’s lap. As she reached the vehicle, 

McGhee held his license and the vehicle’s registration out the 

window. 

 Officer Dalton testified that as she spoke with McGhee 

“[t]here was a very strong odor of alcohol coming from his 

breath. Slurred speech and his eyes were very bloodshot.” 

Officer Dalton returned to her patrol car to process 

McGhee’s license and registration information. As she was 

doing so, other officers arrived. She then approached McGhee 

again and informed him he was under arrest for public 

intoxication. McGhee refused to exit the vehicle and became 

 1

 These facts are taken from the hearing on the motion to 

suppress. 

2
“[v]ery belligerent” and “[v]ery loud, yelling, screaming.” As 

officers extracted him from the vehicle and subdued him, McGhee 

threatened repeatedly that he had a gun. Officer Dalton patted 

him down but did not discover a firearm. She then searched 

“just the area of where he was sitting” in the vehicle.2

Behind the driver’s seat she found a small torn piece of 

plastic that she identified as packaging for crack cocaine. 

Over the visor of the driver’s seat she found a neatly folded 

five-dollar bill, which field-tested positive for cocaine. 

Thereafter, she recovered a tissue that contained a large 

amount of cocaine from the glove box, and she recovered a book 

bag that contained a large amount of cocaine, digital scales, 

batteries, a box of plastic sandwich bags, scissors, and baking 

soda from the back seat. 

After performing the search, Officer Dalton filled out an 

inventory towing report. She testified it was the policy of 

Danville police to fill out an inventory report when a car was 

left unattended by virtue of taking a person into custody. 

 McGhee filed a motion to suppress in which he asserted 

that Officer Dalton lacked probable cause to arrest and the 

inventory search was not consistent with police procedure. 

 2

 The passenger in McGhee’s vehicle was not in custody. 

Based upon McGhee’s threats, Officer Dalton could not know 

whether there was a firearm in the passenger compartment 

accessible to the passenger. 

3
Following a hearing, the trial court denied the motion. The 

trial court did not rule on the inventory search, since it held 

that the search was a valid search incident to arrest. McGhee 

did not object to this ruling contemporaneously or by noting an 

objection to the order denying his motion to suppress. 

ANALYSIS 

 McGhee now argues that the trial court erred in denying 

the motion to suppress the evidence because there was no 

probable cause for the arrest and because the search of the 

vehicle was invalid under both the inventory and search 

incident to arrest exceptions to the Fourth Amendment warrant 

requirement. 

We previously have explained the standard of review for 

rulings denying a motion to suppress for violation of a 

person’s Fourth Amendment rights: 

The burden is on the defendant to show that the 

trial court committed reversible error. We are 

bound by the trial court’s factual findings 

unless those findings are plainly wrong or 

unsupported by the evidence. We will review the 

trial court’s application of the law de novo. 

Whitehead v. Commonwealth, 278 Va. 300, 306-07, 683 S.E.2d 299, 

301 (2009) (quoting Malbrough v. Commonwealth, 275 Va. 163, 

168-69, 655 S.E.2d 1, 3 (2008)). 

A. PROBABLE CAUSE FOR ARREST 

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The Fourth Amendment guarantees, in relevant part, “[t]he 

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

papers, and effects, against unreasonable searches and 

seizures.” U.S. Const. amend. IV. In Virginia, a police 

officer may arrest a person without a warrant if the officer 

has probable cause to believe he committed a crime in the 

officer’s presence. Code § 19.2-81(B). 

We have explained that “probable cause exists when the 

facts and circumstances within the officer’s knowledge, and of 

which he has reasonably trustworthy information, alone are 

sufficient to warrant a person of reasonable caution to believe 

that an offense has been or is being committed.” Jones, 279 

Va. at 59, 688 S.E.2d at 273 (internal quotation marks 

omitted). 

 Code § 18.2-388 states, in relevant part, that “[i]f any 

person . . . is intoxicated in public . . . he shall be deemed 

guilty of a Class 4 misdemeanor.” Code § 4.1-100 defines 

“intoxicated” as “a condition in which a person has drunk 

enough alcoholic beverages to observably affect his manner, 

disposition, speech, muscular movement, general appearance or 

behavior.” 

 This Court has held that “mere odor of alcohol on one’s 

breath” is insufficient as a matter of law to prove 

intoxication. Hill v. Lee, 209 Va. 569, 572, 166 S.E.2d 274, 

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276 (1969). However, ”the odor of alcohol on a person’s breath 

coupled with other circumstances, such as those indicated in 

the language of the statute [predecessor to Code § 4.1-100], 

will be sufficient to support a finding of intoxication.” Id.

 Relying on United States v. Brown, 401 F.3d 588 (4th Cir. 

2005), McGhee argues that Officer Dalton lacked probable cause 

to arrest him for being intoxicated in public because he was 

not visibly impaired. In that case, the United States Court of 

Appeals for the Fourth Circuit held that Virginia law requires 

evidence of physical impairment to establish probable cause. 

Id. at 597-98. 

Assuming without deciding that Code § 18.2-388 requires 

physical impairment, Officer Dalton in fact observed signs of 

physical impairment in McGhee. In addition to the strong odor 

of alcohol coming from his breath and his very bloodshot eyes, 

McGhee exhibited slurred speech as he talked with her. 

Consequently, Officer Dalton had probable cause to believe that 

McGhee had consumed enough alcohol to visibly affect his 

“manner, disposition, speech, muscular movement, general 

appearance or behavior.” Code § 4.1-100. 

B. SEARCH OF VEHICLE 

McGhee argued to the trial court that the search of his 

vehicle was an improper inventory search. He did not assert 

the alleged invalidity of a search incident to arrest at that 

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time. However, both the trial court and the Court of Appeals 

declined to rule on the inventory search argument. Rather, 

both ruled the search was a valid search incident to arrest. 

On appeal, McGhee argues that under Arizona v. Gant, 556 

U.S. ___, 129 S.Ct. 1710 (2009), published after his 

conviction, the search was not within the search incident to 

arrest exception to the warrant requirement. We recognize that 

under Gant vehicular searches incident to arrest are limited to 

situations where the arrestee is unsecured and within reaching 

distance of the passenger compartment at the time of the 

search, or where it is “ 'reasonable to believe evidence 

relevant to the crime of arrest might be found in the vehicle.’ 

”Id. at ___, 129 S.Ct. at 1719 (quoting Thornton v. United 

States, 541 U.S. 615, 632 (2004)). 

However, we need not apply the holding in Gant because 

McGhee did not challenge the search incident to arrest in the 

trial court.3 The Commonwealth concedes that the Gant decision 

 3

 McGhee did not set forth this argument as a ground in his 

written suppression motion. See Code § 19.2-266.2. While a 

trial court may, for good cause shown and in the interests of 

justice, grant leave for a defendant to amend a motion to 

suppress, Wilson v. Commonwealth, 220 Va. 26, 32, 255 S.E.2d 

464, 469 (1979); Schmitt v. Commonwealth, 262 Va. 127, 145-46, 

547 S.E. 2d 186, 199 (2001), McGhee did not request leave to 

amend. Likewise he did not object to the trial court’s ruling, 

either contemporaneously or when the order denying his motion 

to suppress was entered. 

McGhee first asserted the invalidity of the search 

incident to arrest based on Gant in his November 24, 2008 

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applies retroactively “to all convictions that were not yet 

final at the time the decision was rendered.” United States v. 

Johnson, 457 U.S. 537, 562 (1982). However, McGhee cannot 

invoke Gant on appeal when he did not object to the search 

incident to arrest below. Rule 5:25; Commonwealth v. Jerman, 

263 Va. 88, 94, 556 S.E.2d 754, 757 (2002) (“The perceived 

futility of an objection does not excuse a defendant’s 

procedural default at trial.”). 

 The holding of the Court of Appeals, that the passenger 

compartment search was justified as incident to arrest, was 

correct when it was rendered. At that time, prior to the Gant

decision, the only two requirements for a valid search incident 

to arrest of the passenger compartment of a vehicle were: “(1) 

whether the defendant was the subject of a lawful custodial 

arrest; and (2) whether the arrestee was the occupant of the 

vehicle that was searched.” Glasco v. Commonwealth, 257 Va. 

433, 438, 513 S.E.2d 137, 140 (1999). See also Thornton v. 

United States, 541 U.S. 615, 623 (2004). 

 As discussed above, McGhee “was the occupant of the 

vehicle that was searched,” 257 Va. at 438, 513 S.E.2d at 140, 

and was the subject of a lawful custodial arrest for public 

 

petition to the Court of Appeals. He explained that the 

Supreme Court of the United States had heard argument in Gant

in October 2008, but had not yet published its decision. The 

case was decided April 21, 2009. 

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intoxication. Therefore we find that the trial court and the 

Court of Appeals properly applied then existing law. Officer 

Dalton’s search of McGhee’s vehicle was a proper search 

incident to arrest, as McGhee was in custody and was an 

occupant of the vehicle.4 See id. 

 We therefore will affirm the judgment of the Court of 

Appeals. 

Affirmed. 

 4

 Because we find that the search incident to arrest was 

valid under then existing law, we need not consider McGhee’s 

challenge to the inventory search of his vehicle. See Air 

Courier Conference v. American Postal Workers Union, 498 U.S. 

517, 531 (1991) (Stevens, J., concurring) (faithful adherence 

to the doctrine of judicial restraint warrants decision of 

cases “on the best and narrowest ground available”). 

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