                                COURT OF APPEALS OF VIRGINIA


Present: Chief Judge Felton, Judge Elder and Senior Judge Bumgardner
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                                              MEMORANDUM OPINION * BY
v.      Record No. 1976-10-2                              CHIEF JUDGE WALTER S. FELTON, JR.
                                                                    MARCH 8, 2011
BRANDON MARSHALL TURNER


                     FROM THE CIRCUIT COURT OF ALBEMARLE COUNTY
                                  Cheryl V. Higgins, Judge

                  Eugene Murphy, Senior Assistant Attorney General (Kenneth T.
                  Cuccinelli, II, Attorney General, on brief), for appellant.

                  (Michael T. Hemenway, on brief), for appellee. Appellee submitting
                  on brief.


        Brandon Marshall Turner (“Turner”) was indicted by the Circuit Court of Albemarle County

(“trial court”) for possession of cocaine with intent to distribute, second or subsequent offense, in

violation of Code § 18.2-248, and possession of marijuana with intent to distribute, in violation of

Code § 18.2-248.1. Prior to trial, Turner filed a motion to suppress evidence obtained in a search of

his person following a traffic stop during which officers found marijuana in the car he was driving.

Turner asserted that the search of his person was in violation of his Fourth Amendment right against

unlawful search and seizure. The trial court granted Turner’s motion to suppress. The

Commonwealth appealed to this Court, pursuant to Code § 19.2-398(A)(2).

                                          I. BACKGROUND

        On the night of March 22, 2010, Officer Andrew Holmes of the Albemarle County Police

Department conducted a traffic stop after Turner failed to dim his high-beam headlights for

        *
            Pursuant to Code § 17.1-413, this opinion is not designated for publication.
oncoming traffic. Turner was the sole occupant of the car. 1 Officer Holmes knew Turner was

on probation as a result of a previous “buy bust” operation during which Turner sold illegal

drugs to an informant. When Officer Holmes asked Turner for his operator’s license and car

registration, he observed what he believed to be marijuana “shake” 2 in the center console of the

car, near the shift column. As a result of his observation, he requested Officer Hooper come to

the location with his narcotics detection dog.

        Officer Holmes was in the process of issuing the traffic summons to Turner when Officer

Hooper arrived. 3 Officer Holmes explained the situation to Officer Hooper, and directed Turner

to step out of the car.

        Officer Hooper then walked his narcotics detection dog, Bink, around the car. Bink

alerted and indicated the presence of narcotics in Turner’s car on the driver’s side front grill area

as well as the driver’s side door handle. 4 Based on the dog’s actions, Officer Hooper informed

Officer Holmes that the odor of narcotics was coming from the vehicle.

        Officer Holmes asked Turner to remain at the police vehicle while the officers searched

his car. During the search, Officer Holmes confirmed that the “shake” on the center console was

marijuana. Officer Holmes also found a partially smoked cigar in the ashtray. A field test of the

partially smoked cigar was positive for marijuana.




        1
            The car was registered to Turner’s mother.
        2
        Officer Holmes defined “shake” as “[s]mall particles of marijuana. What’s commonly
broken off the larger marijuana bud for a marijuana blunt - - - a marijuana joint.”
        3
         Officer Holmes requested information from police dispatch regarding Turner’s
operator’s license because Turner did not have his license with him.
        4
         Officer Hooper testified that Bink is “passive indication, so he sits” to indicate the odor
of narcotics. An “alert” by a drug dog is “a number of different things . . . increased sniffing, . . .
increased tail wag speed, . . . interest in a particular area.”
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        After the officers completed the search of the car, Officer Holmes handcuffed Turner and

began to search him. He told Turner twice that he was not under arrest. He also told Turner,

“[g]ive me two seconds and you will be on your way” and “you’re not getting charged with

anything.” In response to Turner’s inquiry of whether he would have to go to jail for the

marijuana cigar, Officer Holmes responded, “no, you don’t go to jail for that.” At that point

during the search, Officer Holmes discovered a plastic shopping bag containing cocaine and a

scale in the back of Turner’s pants.

        At the hearing on Turner’s motion to suppress the evidence seized during the search of

his person, Officer Holmes testified that he believed he had probable cause to arrest Turner for

possession of marijuana when he searched him. After hearing the evidence and argument of

counsel, the trial court stated:

                in this case [Turner] was, obviously, taken into custody
                handcuffed, but he was not under arrest. There was no search
                incident to arrest that the Court can find, based upon the statements
                of Officer Holmes. In fact, Officer Holmes makes it very clear
                he’s not placing [Turner] under arrest, that he’s searching for
                whatever reason, but it’s not incident to arrest, because had they
                not found anything Officer Holmes makes it clear, in another two
                seconds, his word, [Turner] would have been free to go. . . . I find,
                therefore, that it’s not a search incident to arrest.

The trial court then granted Turner’s motion to suppress the evidence seized from him during

Officer Holmes’ search of his person.

                                          II. ANALYSIS

        On the appeal by the Commonwealth of a trial court’s pre-trial order granting a motion to

suppress evidence, we view the evidence in the record in the light most favorable to the accused,

the prevailing party below, granting to the evidence all reasonable inferences fairly deducible

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

“Whether an officer has probable cause to arrest an individual in the absence of a warrant is


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determined under an objective test based on a reasonable and trained police officer’s view of the

totality of the circumstances.” Brown v. Commonwealth, 270 Va. 414, 419, 620 S.E.2d 760, 762

(2005). In cases involving the Fourth Amendment, “we give deference to the historical facts

determined by the trial court, but we review de novo whether the legal standard of probable

cause was correctly applied to the historical facts.” Id. “To determine whether probable cause

exists, we ‘will focus upon what the totality of the circumstances meant to police officers trained

in analyzing the observed conduct for purposes of crime control.’” Id. (quoting Taylor v.

Commonwealth, 222 Va. 816, 820-21, 284 S.E.2d 833, 836 (1981) (quotations omitted)).

       “A general rule recognized by both federal and state courts is that when probable cause

exists to arrest a person, a constitutionally permissible search of the person incident to arrest may

be conducted by an officer either before or after the arrest if the search is contemporaneous with

the arrest.” Italiano v. Commonwealth, 214 Va. 334, 336, 200 S.E.2d 526, 528 (1973) (per

curiam).

               When the evidence shows that probable cause exists for arresting a
               suspect for a felony, and it is clear that evidence seized in a
               contemporaneous search of the suspect’s person was not necessary
               to establish probable cause, the search is incidental to the arrest
               and is valid whether it takes place at the moment the arresting
               officer takes the suspect into custody or when he announces that
               the suspect is under arrest.

Howard v. Commonwealth, 210 Va. 674, 678, 173 S.E.2d 829, 833 (1970). “Probable cause

exists where the facts and circumstances known to the officer warrant a man of reasonable

caution in believing the suspect has committed an offense.” Id.

       While the trial court properly found that the information possessed by Officer Holmes

before he conducted the search was “sufficient for probable cause,” it erred in holding that a

formal arrest must precede the search of a suspect’s person. An officer who has probable cause

to arrest a person for possession of unlawful substances may conduct a search of that person


                                                -4-
prior to formally arresting him. Id. See Williams v. Commonwealth, 21 Va. App. 263, 463

S.E.2d 679 (1995) (holding search of Williams prior to formal arrest permissible where officers

had probable cause to believe Williams possessed illegal narcotics); Buck v. Commonwealth, 20

Va. App. 298, 304, 456 S.E.2d 534, 537 (1995) (upholding search of Buck prior to formal arrest

because “[w]hen an officer has probable cause to arrest a person, the officer may search the

person, particularly where the evidence is of a highly evanescent nature”); Poindexter v.

Commonwealth, 16 Va. App. 730, 733-34, 432 S.E.2d 527, 529 (1993) (“if the police have

probable cause to effect an arrest, a limited search may be justified even in the absence of a

formal arrest” (citing Cupp v. Murphy, 412 U.S. 291, 295-96 (1973) (upholding the taking of

fingernail scrapings from murder suspect who was not contemporaneously arrested))). The

officer’s statements to Turner that he was not under arrest did not change the fact that he had

probable cause to arrest Turner for possession of marijuana.

         For the foregoing reasons, we hold that the trial court erred in granting Turner’s motion

to suppress.

                                        III. CONCLUSION

         We hold that the trial court erred when it granted Turner’s motion to suppress.

Accordingly, we reverse the trial court’s order granting the motion to suppress and remand for

trial.

                                                                     Reversed and remanded.




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