Commonwealth v. Corcoran

1

COMMONWEALTH OF VIRGINIA v. JOSEPH CORCORAN

No. 0162-24-1

Court of Appeals of Virginia

June 25, 2024

FROM THE CIRCUIT COURT OF THE CITY OF VIRGINIA BEACH James C Lewis, Judge

Justin M. Brewster, Assistant Attorney General (Jason S. Miyares Attorney General, on briefs), for appellant.

George Holton Yates (George Holton Yates, PC, on brief), for appellee.

Present: Judges Causey, Chaney and Callins

MEMORANDUM OPINION ^[*]

DOMINIQUE A. CALLINS JUDGE

After police placed Joseph Corcoran in a van for transport to jail late one night in June 2019, a law enforcement officer searched his wallet. In it, the officer found a baggie containing a crystal-like substance. Corcoran was subsequently charged with multiple counts, including possession of a Schedule I or II controlled substance. Corcoran moved to suppress all evidence resulting from his interaction with officers that night, and the circuit court granted Corcoran's motion as to suppression of the wallet. The Commonwealth appeals, arguing that (i) the search of the wallet was lawful, (ii) even if the search was unlawful, the evidence would have been inevitably discovered, and (iii) the exclusionary rule does not apply. Because the Commonwealth has failed to meet its burden in proving (i), (ii) or (iii), we affirm the judgment of the circuit court.

BACKGROUND

At about 2:30 a.m. on June 29, 2019, Deputy Mark Simmons of the Virginia Beach Sheriff's Department was driving a police transport van near the oceanfront on Atlantic Avenue, when Aaron Underhill, a private citizen, flagged down Deputy Simmons near the Colony Condominiums. Underhill reported that he had heard a "commotion" while walking past the condominiums. Three "girls" had approached Underhill, asking for protection from Corcoran; the girls did not want Underhill to leave. Deputy Simmons requested backup assistance and related the information Underhill had given. While Deputy Simmons awaited other officers, Corcoran approached; he said he was the girls' father, he could discipline them as he pleased, and that the situation was no one else's business. Deputy Simmons described Corcoran as "aggressive, irritated, [and] angry."

As Sergeant Nicholas Ball and Officer Mitchell Mengel, who had arrived on the scene, interacted with Corcoran's wife and daughters, Corcoran entered his van, started it, remarked that the law enforcement officers did not have his permission to talk to his 15-year-old daughter, and told his wife and daughters to get in the vehicle. Corcoran's wife and daughters refused to get in the van, and Corcoran "tr[ied] to drive away." Deputy Simmons positioned himself in front of the van and told Corcoran to stop "several times"-"[e]ventually [Corcoran] stopped."^[1] When Officer Mengel ordered Corcoran to exit the vehicle, Corcoran refused. Officer Mengel opened the van door and ordered Corcoran out, but Corcoran again refused.^[2] After Officer Mengel reached into the vehicle to unlatch Corcoran's seatbelt, Corcoran pushed the officer away. Officer Mengel threatened to use his taser if Corcoran did not get out. A struggle followed that included Officer Mengel's use of both his taser and baton.

Officers eventually took Corcoran to the ground and handcuffed him. Afterwards, the law enforcement officers took Corcoran across the street to the location of Deputy Simmons's van, where they took Corcoran back to the ground to search him. The officers placed him in Deputy Simmons's van for transport to jail.

According to Officer Mengel, Corcoran was under arrest at that time. Officer Mengel testified that after an arrest, any personal property that was not illegal contraband, such as a wallet, would accompany a suspect to the jail, where an "intake" procedure would follow. Officer Mengel confirmed that, upon intake, such personal property, like a wallet, would be "searched."

Officer Rachel Nash testified that another officer "made it known to [her] that the wife was asking for the condo key, and [Nash] was told to look for it inside the actual wallet itself." Officer Nash acknowledged that after being told about the wife's request for the key, she went "into the wallet." In the wallet, "inside where the normal cash is," Officer Nash found a small bag of "crystal-like substance." Officer Nash could not recall whether she found the condo key in the wallet.^[3] Moreover, although Officer Nash said that the wallet was found in Corcoran's pants pocket, she did not state explicitly whether she removed the wallet from his pocket, whether the wallet had been lawfully seized prior to her search, or how long after Corcoran had been placed in handcuffs her search of the wallet occurred.^[4]

A grand jury in the City of Virginia Beach indicted Corcoran for possessing a Schedule I or II controlled substance and two counts of assault or assault and battery upon a law enforcement officer. Corcoran was also charged by warrant with misdemeanor obstruction of justice.

In a written motion to suppress, Corcoran asserted that the police searched the wallet without his consent, before he was formally arrested for any crime, and during a seizure "in the absence of probable cause or reasonable suspicion[.]" He asserted that the police violated his constitutional rights by using excessive force "at a time that he was not under arrest or even under reasonable suspicion of any crime." He maintained that the circuit court should, as a result, "suppress and exclude from the trial . . . any and all evidence derived from the unlawful and unconstitutional acts" as well as dismiss the charges against him.

After hearing testimony and argument related to Corcoran's motion, the circuit court questioned the admissibility of the evidence found in the wallet because the Commonwealth had not introduced testimony related to how precisely the wallet came into police possession when Officer Nash searched it. The circuit court explained,

I don't know where the wallet was when Officer Nash searched it. I don't know if it was still in his pocket, it had been taken out and put in some kind of container. There's a lot of holes in this case, and I'm going to sustain the defendant's motion to suppress the search of the wallet.

Although it granted Corcoran's motion to suppress the evidence seized from the wallet, the circuit court refused Corcoran's request to dismiss "the rest of the charges." The Commonwealth appeals the circuit court's ruling under Code § 19.2-398(A)(2).

ANALYSIS

I. Standard of Review

"The Fourth Amendment protects individuals from unreasonable searches and seizures." Parady v. Commonwealth, 78 Va.App. 18, 28 (2023). "[W]arrantless searches are per se unreasonable, subject to a few specifically established and well-delineated exceptions." Id. At 28-29 (alteration in original) (quoting Megel v. Commonwealth, 262 Va. 531, 534 (2001)). "The Commonwealth bears the burden of proving that a warrantless search fits under an exception to the warrant requirement of the Fourth Amendment." Id. at 24. "[W]e 'review[] de novo the overarching question of whether a search or seizure violated the Fourth Amendment.'" Id. at 29 (second alteration in original) (quoting Williams v. Commonwealth, 71 Va.App. 462, 475 (2020)).

Further, "[i]n an appeal by the Commonwealth of an order of the trial court suppressing evidence, the evidence must be viewed in the light most favorable to the defendant and findings of fact are entitled to a presumption of correctness unless they are plainly wrong or without evidence to support them." Commonwealth v. Peterson, 15 Va.App. 486, 487 (1992).

II. The Search-Incident-to-Arrest Doctrine

The Commonwealth's first argument reduces to the simple claim that, because Corcoran had been lawfully arrested, and the search of Corcoran's wallet was contemporaneous with that arrest, "Officer Nash was permitted to search the wallet as a search incident to arrest."

"Under the Fourth Amendment, '[w]hen 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, and to search the suspect in order to safeguard evidence and ensure their own safety.'" Joyce v Commonwealth, 56 Va.App. 646, 657 (2010) (alteration in original) (quoting Virginia v. Moore, 553 U.S. 164, 178 (2008)). It follows that "the search incident to arrest 'exception' is really a subset of the 'exigent circumstances' doctrine; one of the 'particular types of exigencies-circumstances that present a compelling need for immediate action-which occur often enough that the courts treat them as separate exceptions to the Warrant Clause.'" Parady, 78 Va.App. at 31-32 (quoting Ronald J. Bacigal & Corinna Barrett Lain, Warrantless Searches-Exigent Circumstances, Va. Prac. Crim. Pro. § 4:24 (2022-2023 ed.)).

Thus "[a]n officer may search after-or even before-an arrest so long as the search 'is substantially contemporaneous with the arrest and confined to the immediate vicinity of the arrest.'" Id. at 32 (quoting Stoner v. California, 376 U.S. 483, 486 (1964)). "This well-established exception to the warrant requirement has long been understood as promoting officer safety and evidence preservation." Id. That is, "[w]hen an arrest is made, it is reasonable for the arresting officer to search the person arrested in order to remove any weapons that the latter might seek to use in order to resist arrest or effect his escape." Id. (quoting Chimel v. California, 395 U.S. 752, 762-63 (1969)). "Likewise, it is 'entirely reasonable for the arresting officer to search for and seize any evidence on the arrestee's person in order to prevent its concealment or destruction.'" Id. (quoting Chimel, 395 U.S. at 763). "But these justifications are absent where a search is remote in...