                               COURT OF APPEALS OF VIRGINIA


Present: Judges Benton, Kelsey and McClanahan
Argued at Richmond, Virginia


HATARI DEMON ROSS
                                                              MEMORANDUM OPINION* BY
v.     Record No. 0342-04-2                                    JUDGE D. ARTHUR KELSEY
                                                                  DECEMBER 28, 2004
COMMONWEALTH OF VIRGINIA


                 FROM THE CIRCUIT COURT OF THE CITY OF RICHMOND
                               Bradley B. Cavedo, Judge

                 W. Edward Riley, IV (Boone, Beale, Cosby & Long, on brief),
                 for appellant.

                 Josephine F. Whalen, Assistant Attorney General (Jerry W.
                 Kilgore, Attorney General, on brief), for appellee.


       The trial court found Hatari D. Ross guilty of possession of cocaine. On appeal, Ross

claims the trial court should have suppressed incriminating evidence found during the search

incident to his arrest. Finding no error, we affirm the trial court.

                                                  I.

        On appeal from a denial of a suppression motion, we examine the evidence in the light

most favorable to the Commonwealth, giving it the benefit of all reasonable inferences. Medley

v. Commonwealth, 44 Va. App. 19, 24, 602 S.E.2d 411, 413 (2004) (en banc); Slayton v.

Commonwealth, 41 Va. App. 101, 103, 582 S.E.2d 448, 449 (2003).

       While patrolling Gilpin Court, a housing project owned by the Richmond Redevelopment

and Housing Authority (RRHA), Officer Jonathan Davis arrested Ross for trespassing. At

Ross’s trial in the juvenile and domestic relations district court, Judge David Eugene Cheek, Sr.


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
dismissed the charge but, in open court, specifically “ordered Mr. Hatari Ross to stay off the

RRHA property, Gilpin Court.” Authorized by the RRHA to issue no-trespassing warnings to

specific individuals, Officer Davis likewise ordered Ross to keep off the property.

       About three weeks later, Officer Davis saw Ross at “the same spot” where he had been

arrested before. It was one of the “well known drug areas” in the project. “No Trespassing”

signs were posted throughout. Having been in the courtroom during the earlier trial when Judge

Cheek banned Ross from this property, Officer Davis approached Ross intending to place him

under arrest for trespass. When Davis attempted to detain Ross, he struggled in an effort “to

break away.” At that point, Davis “took him down on the ground and handcuffed him.” Davis

then searched Ross and found on him a small bag of cocaine and a crack pipe.

       At trial, Ross moved to suppress the evidence on the ground that Officer Davis had no

authority to arrest him. Officer Davis testified that he arrested Ross because he would likely be

right “back on the property” if Davis simply handed him a summons. Having willfully

disregarded a judge’s direct order, Davis reasoned, Ross would hardly be motivated into

compliance by a mere summons. The trial court found Officer Davis’s testimony credible,

concluding “it was within the officer’s discretion under the facts of this case where he observed a

repeat offense by Mr. Ross of the trespass to make a custodial arrest if he chose to do so.”

Because the “the arrest was legal under the circumstances,” the court held, the “search

subsequent to arrest was a valid search.”

                                                II.

       We begin by framing precisely the question on appeal. Ross does not argue that the

search violated the Fourth Amendment because Officer Davis had no constitutional authority to

arrest him. He concedes probable cause existed to support a charge of trespassing. See generally

Atwater v. Lago Vista, 532 U.S. 318, 354 (2001) (holding that, so long as probable cause exists,

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the Constitution does not forbid custodial arrests for even minor misdemeanors punishable only

by a fine). Instead, Ross claims Officer Davis violated Code § 19.2-74 by arresting him instead

of merely issuing a summons. This violation of state arrest law, Ross contends, triggers the

exclusionary rule of Knowles v. Iowa, 525 U.S. 113, 116 (1998) (holding

search-incident-to-arrest doctrine inapplicable when an officer merely issues a summons to a

suspect, but does not arrest him),1 as applied by our decision in Hunt v. Commonwealth, 41

Va. App. 404, 585 S.E.2d 827 (2003) (extending Knowles to situations where an officer arrests a

suspect in violation of Code § 19.2-74).2 We need not address Ross’s exclusionary rule

argument because we find, like the trial court, no predicate violation of state arrest law.

       Code § 19.2-74(A)(1) provides that, under ordinary circumstances, individuals accused of

most Class 1 and 2 misdemeanors should be temporarily taken into custody and then released on

a summons. In this sense, “an individual can be in ‘custody’ even when a formal arrest will not

follow.” White v. Commonwealth, 267 Va. 96, 104, 591 S.E.2d 662, 667 (2004); see also Smith


       1
         See also Lovelace v. Commonwealth, 258 Va. 588, 594-95, 522 S.E.2d 856, 859 (1999)
(agreeing with appellant’s argument “that the search of his person violated the Fourth
Amendment because he was not subject to a custodial arrest” but was nevertheless searched as if
he had been arrested); West v. Commonwealth, 36 Va. App. 237, 240-42, 549 S.E.2d 605,
606-07 (2001) (holding that a search conducted while the officer was “filling out the
summonses” could not be justified as a search incident to a custodial arrest); Farrow v.
Commonwealth, 31 Va. App. 517, 521, 525 S.E.2d 11, 13 (2000) (finding that search during a
temporary detention of suspect, while the officer escorted the suspect to the “security room” to
obtain the officer’s “summons book,” did not constitute a search incident to a custodial arrest);
Rhodes v. Commonwealth, 29 Va. App. 641, 642, 513 S.E.2d 904, 905 (1999) (en banc)
(holding a search during temporary detention preceding an intended “release . . . on a summons”
did not constitute a valid search incident to custodial arrest).
       2
          By an evenly divided vote, the en banc Court vacated the Hunt panel opinion cited by
Ross. Hunt v. Commonwealth, 42 Va. App. 537, 592 S.E.2d 789 (2004) (en banc). The Virginia
Supreme Court affirmed our en banc holding by per curiam opinion. Hunt v. Commonwealth,
No. 040614, slip op. at 1 (Oct. 8, 2004) (“Assuming, without deciding, that a violation of Code
§ 19.2-74 occurred, the defendant failed to establish that he was entitled to suppression of the
evidence obtained as a result of the search. In the absence of a violation of a defendant’s
constitutional rights, the remedy of exclusion of evidence is not available for a statutory
violation.”).
                                                -3-
v. Commonwealth, 30 Va. App. 737, 742, 519 S.E.2d 831, 833 (1999) (“Code § 19.2-74 clearly

permits an officer to detain an alleged violator or take the alleged violator into custody long

enough to issue a summons.”).

       The individual need not be released from temporary custody, however, if he refuses to

sign the summons promising to appear or if he poses a threat of harm to himself or others. Code

§ 19.2-74(A)(1) & (A)(3). Nor must an officer release an individual if the officer has “a

reasonable belief that the person arrested will fail to appear in court on his or her promise or fails

to discontinue the unlawful act.” West v. Commonwealth, 36 Va. App. 237, 240, 549 S.E.2d

605, 606 (2001). When an officer decides that a “statutory exclusion” to a summons release

applies, we review that exercise of discretion under an objective test ⎯ limiting our inquiry to

the question “whether evidence supports a reasonable belief that the statutory circumstances

obtain.” Fox v. Commonwealth, 43 Va. App. 446, 450, 598 S.E.2d 770, 771 (2004).

       In this case, Ross had been ordered by Judge Cheek in open court to stay off the housing

authority property. Acting on behalf of the RRHA, Officer Davis issued a separate order to Ross

forbidding any continuing trespass. Yet, within three weeks, Ross was found at the same spot in

a high-drug area of the project. He struggled to break away from Officer Davis, requiring Davis

to take him down to the ground and forcibly place him in handcuffs. See Smith, 30 Va. App. at

743, 519 S.E.2d at 833 (“The officers, therefore, were entitled to arrest her when it was apparent

that she would not cooperate.”). Given these circumstances, Officer Davis had ample reason to

believe Ross would disregard a mere summons ⎯ just as he had a direct order from Judge

Cheek, a separate order from Davis, and any number of “No Trespassing” signs ⎯ and be back

on the property soon after Officer Davis’s departure.




                                                 -4-
       For these reasons, the trial court did not err in denying Ross’s suppression motion. In

arresting Ross, Officer Davis acted within the discretion afforded him under Code

§ 19.2-74(A)(1).

                                                                                Affirmed.




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