Purvis v. Commonwealth

ANTHONY LAMONT PURVIS v. COMMONWEALTH OF VIRGINIA

Record No. 0921-14-1

COURT OF APPEALS OF VIRGINIA

FEBRUARY 23, 2016

UNPUBLISHED

Present: Chief Judge Huff, Judges Decker and AtLee

Argued at Chesapeake, Virginia

MEMORANDUM OPINION^* BY JUDGE RICHARD Y. ATLEE, JR.

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK

Jerrauld C. Jones, Judge

J. Barry McCracken, Assistant Public Defender, for appellant.

Steven A. Witmer, Senior Assistant Attorney General (Mark R. Herring, Attorney General, on brief), for appellee.

Charged with cocaine distribution, Anthony Lamont Purvis moved to suppress evidence discovered on his person, in his car, and in his home. He alleged that his Fourth Amendment rights were violated when police searched his car and his person with invalidly-obtained consent, and later used the fruits of those searches to obtain a search warrant.¹ He now appeals the trial court's denial of his motion to suppress.² We affirm.

I. BACKGROUND

"In reviewing the denial of a motion to suppress evidence claiming a violation of a person's Fourth Amendment rights, we consider the facts in the light most favorable to the Commonwealth, the prevailing party at trial." Malbrough v. Commonwealth, 275 Va. 163, 168, 655 S.E.2d 1, 6 (2008). So viewed, the facts are as follows.

On October 3, 2013, uniformed Officers McMullen and Smith of the Norfolk Police Department were on patrol in an unmarked police vehicle. Shortly before 10:00 p.m., Officer McMullen activated the vehicle's emergency lights and siren and stopped a car after seeing it make an improper right turn from the center lane.³ He approached the car and found Purvis to be the driver. Officer Smith approached a woman in the passenger seat and began speaking with her. Officer McMullen saw that Purvis was nervous and that his hands were shaking. When Officer McMullen asked for his license, Purvis admitted that it was suspended. (The officer confirmed Purvis's license suspension.) Officer McMullen then told Purvis that he "wasn't overly concerned with [Purvis's] driver's license being suspended due to his cooperation" and asked if he could search Purvis "and the vehicle for any weapons or narcotics that he might have on him or in the vehicle." In response, Purvis exited the car and consented to a search of his person and his car.

Officer McMullen searched Purvis and Purvis's passenger, but found nothing incriminating. During his search of the front passenger-side door of the car, however, Officer McMullen found a straw and a folded dollar bill inside a cigarette box, both containing a substance later confirmed to be cocaine residue. While Purvis and the officers were still on the side of the road, Detective Carpenter of the Norfolk Police Department arrived. OfficerMcMullen advised Detective Carpenter that Purvis had given consent to search his person and his vehicle. Officer McMullen also informed Detective Carpenter of the suspected cocaine found in the vehicle. Detective Carpenter then approached Purvis, who was in handcuffs by this time, and asked him if his passenger "had given him anything illegal to hide during the traffic stop." Purvis replied in the affirmative, and Detective Carpenter proceeded to search him. When Purvis lifted his right pant leg, a bag fell to the ground, containing what Detective Carpenter suspected was cocaine. A field-test confirmed Detective Carpenter's suspicion. Purvis never revoked his consent for the search of the car or his person by either Officer McMullen or Detective Carpenter, nor did he limit the scope of these searches in any way.

Based on the cocaine found in the search of Purvis and his car, a search warrant was obtained and executed at Purvis's home. There, police found more cocaine, as well as packaging material, cutting agents, and a scale. Purvis was charged with distribution of cocaine. Officer McMullen did not charge Purvis with the improper turn or with driving on a suspended license.

Purvis moved to suppress the items found in the search of his person, vehicle, and home, alleging that his rights under the Fourth Amendment were violated. The trial court denied his motion. Purvis then entered a conditional guilty plea to the charge. The trial court accepted the conditional guilty plea, convicted him, and sentenced him to fifteen years in the penitentiary, suspending six years.

II. ANALYSIS

The Fourth Amendment to the United States Constitution states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Purvis does not challenge the stop of his vehicle for a traffic infraction. Nor does he disagree that his operator's license was suspended at the time he was stopped. Instead, Purvis argues that, "[h]aving elected to forgo further prosecution of the alleged traffic offenses, the officer's extension of the stop to investigate possible drug offenses without a reasonable and articulable basis to do so constituted an impermissible seizure of [Purvis]." We disagree with the premise underlying the assignment of error. Viewing Officer McMullen's actions objectively, we find that he had probable cause to arrest Purvis for driving on a suspended license, and thus to search his person incident to arrest. We also find that Officer McMullen obtained valid consent to search Purvis's vehicle. As such, Officer McMullen needed no additional suspicion to justify the searches.

A. STANDARD OF REVIEW

In challenging a trial court's ruling that a search was reasonable under the Fourth Amendment, "[t]he burden is on the defendant to show that the trial court committed reversible error." Malbrough, 275 Va. at 168, 655 S.E.2d at 6. As an appellate court, "we give deference to the factual findings of the circuit court." Bay v. Commonwealth, 60 Va. App. 520, 535, 729 S.E.2d 768, 775 (2012) (quoting Brooks v. Commonwealth, 282 Va. 90, 94, 712 S.E.2d 464, 466 (2011)). Those findings are binding on appeal unless "plainly wrong or unsupported by the evidence." Malbrough, 275 Va. at 168, 655 S.E.2d at 7. However, "we independently determine whether the manner in which the evidence was obtained meets the requirements of the Fourth Amendment." Bay, 60 Va. App. at 535, 729 S.E.2d at 775 (quoting Brooks, 282 Va. at 94, 712 S.E.2d at 466). In making this independent determination, we apply a de novo standard of review to the overarching question of whether a seizure of evidence violated the Fourth Amendment. See Glenn v. Commonwealth, 275 Va. 123, 130, 654 S.E.2d 910, 913 (2008).

We analyze law enforcement officers' decisions regarding searches and seizures objectively. See Slayton v. Commonwealth, 41 Va. App. 101, 109, 582 S.E.2d 448, 451 (2003) ("Probable cause . . . turns only on '"objective facts," not the "subjective opinion" of a police officer.'" (quoting Golden v. Commonwealth, 30 Va. App. 618, 625, 519 S.E.2d 378, 381 (1999))). Generally speaking, in order for a warrantless search to be reasonable under the Fourth Amendment, it must be supported by probable cause or consent. See, e.g., Knight v. Commonwealth, 61 Va. App. 297, 312, 734 S.E.2d 716, 723-24 (2012).

B. SEARCH OF PURVIS'S PERSON

1. Probable Cause to Arrest

Although Officer McMullen may have announced that he was subjectively unconcerned with Purvis's suspended license, objectively, Officer McMullen still had probable cause to believe that Purvis was driving on a suspended license. Driving on a suspended license in violation of Code § 46.2-301 is a misdemeanor offense for which an officer may arrest a suspect. In Virginia v. Moore, 553 U.S. 164 (2008), the United States Supreme Court confirmed: "When 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 . . . ." Id. at 178.

It is immaterial to our analysis that Officer McMullen may have had some other, subjective, reason for effecting a seizure of Purvis's person, such as to investigate possible narcotics possession. An officer's "subjective reason for making the arrest need not be the criminal offense as to which the known facts provide probable cause." Devenpeck v. Alford, 543 U.S. 146, 153 (2004). "[T]he Fourth Amendment's concern with 'reasonableness' allows certain actions to be taken in certain circumstances, whatever the subjective intent." Whren v. United States, 517 U.S. 806, 814 (1996); see also Poindexter v. Commonwealth, 16 Va. App. 730, 731-34, 432 S.E.2d 527, 528-30 (1993) (holding that an officer who executed a traffic stopfor speeding, then developed probable cause to believe the suspect was driving on a suspended license, and had the suspect exit the vehicle for that reason, was permitted to seize the drugs located during a subsequent confrontation with the suspect, even though the officer never arrested the suspect for the traffic charges that initially justified his seizure of the suspect); Slayton, 41 Va. App. at 109, 582 S.E.2d at 452 ("The absence of probable cause to believe a suspect committed the particular crime for which he was arrested does not necessarily invalidate the arrest if the officer possessed sufficient objective information to support an arrest on a different charge."). Accordingly, the objective existence of probable cause to arrest Purvis for driving on a suspended license rendered his ongoing seizure reasonable.

2. Authority to Search Incident to Arrest

Having the objective authority to arrest Purvis, Officer McMullen also possessed the objective right to search Purvis incident to arrest. A suspect who has been arrested is subject to search of his person incident to that arrest, because police officers are permitted "to search the suspect in order to safeguard evidence and ensure their own safety." Moore, 553 U.S. at 178; see Joyce v. Commonwealth...