                               COURT OF APPEALS OF VIRGINIA


Present: Judges Bumgardner, Humphreys and Senior Judge Hodges
Argued at Richmond, Virginia


RAY CHARLES JONES
                                                              MEMORANDUM OPINION* BY
v.     Record No. 2079-03-2                                   JUDGE WILLIAM H. HODGES
                                                                    JULY 20, 2004
COMMONWEALTH OF VIRGINIA


             FROM THE CIRCUIT COURT OF THE CITY OF CHARLOTTESVILLE
                              Edward L. Hogshire, Judge

                 Charles L. Weber, Jr., for appellant.

                 Eugene Murphy, Assistant Attorney General (Jerry W. Kilgore,
                 Attorney General, on brief), for appellee.


       In a bench trial, Ray Charles Jones (appellant) was found guilty of carrying a concealed

weapon. On appeal, appellant contends the trial court erred in denying his motion to suppress

because the police conducted an unlawful search of his property. Finding no error, we affirm

appellant’s conviction.

                                                     Facts

       “In reviewing a trial court’s denial of a motion to suppress, ‘[t]he burden is upon [the

defendant] to show that th[e] ruling, when the evidence is considered most favorably to the

Commonwealth, constituted reversible error.’” McGee v. Commonwealth, 25 Va. App. 193,

197, 487 S.E.2d 259, 261 (1997) (en banc) (citation omitted).

       In the early morning hours of September 24, 2002, Officer Louis Roy and another

Charlottesville police officer spotted appellant sitting on a bench in a public park. The park was


       *
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
closed at the time. As the officers approached, appellant started to walk away. Officer Roy

asked appellant what he was doing there. Appellant replied that he was drinking a beer.

Possession of alcohol was prohibited at all times in the park. Appellant was carrying over his

shoulder a green zippered duffle bag. Officer Roy asked where the beer was. Appellant said the

beer was in the bag, but the beer was not open. Upon the officer’s request, appellant put the bag

on a picnic table.

       Officer Roy asked to see the beer. Appellant began unzipping the bag. Officer Roy said,

“No, I’ll open the bag.” As the officer unzipped the bag appellant said, “Okay, it is open.” The

officer saw inside the bag a container of beer that had been opened, but was re-capped. Beneath

the container of beer Officer Roy saw a firearm. The officer placed appellant under arrest for

possession of a concealed weapon.

       Officer Roy testified he unzipped the bag to obtain a sample of the beer so he could

charge appellant with drinking in public, a misdemeanor. He said he did not permit appellant to

unzip the bag himself due to safety concerns.

       At the hearing on appellant’s motion to suppress, the trial court found appellant did not

voluntarily consent to the search of the bag. However, the court concluded that the warrantless

search of the bag was lawful because the police possessed probable cause to believe the bag

contained an alcoholic beverage, which was prohibited in the park. The trial court also ruled

exigent circumstances were present, thus excusing the need for a warrant to search appellant’s

bag.

                                              Analysis

       When we review a trial court’s denial of a suppression motion, “[w]e view the evidence

in a light most favorable to . . . the prevailing party below, and we grant all reasonable inferences

fairly deducible from that evidence.” Commonwealth v. Grimstead, 12 Va. App. 1066, 1067,

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407 S.E.2d 47, 48 (1991) (citation omitted). “[W]e are bound by the trial court’s findings of

historical fact unless ‘plainly wrong’ or without evidence to support them.” McGee, 25 Va. App.

at 198, 487 S.E.2d at 261 (citing Ornelas v. United States, 517 U.S. 690, 699 (1996)).

“However, we consider de novo whether those facts implicate the Fourth Amendment and, if so,

whether the officers unlawfully infringed upon an area protected by the Fourth Amendment.”

Hughes v. Commonwealth, 31 Va. App. 447, 454, 524 S.E.2d 155, 159 (2000) (en banc) (citing

McGee, 25 Va. App. at 198, 487 S.E.2d at 261).

       “A warrantless search is per se unreasonable and violative of the Fourth Amendment of

the United States Constitution, subject to certain exceptions.” Tipton v. Commonwealth, 18

Va. App. 370, 373, 444 S.E.2d 1, 3 (1994) (citation omitted). However, searches made by law

enforcement officers incident to arrest are permitted as an exception to the warrant requirement.

See United States v. Robinson, 414 U.S. 218, 235 (1973). In Robinson, the United States

Supreme Court noted that the authority to conduct a search incident to arrest is based on the need

to disarm the suspect in order to take him into custody and the need to preserve evidence for later

use at trial. See id. at 234. In addition to a search of the suspect’s person, the police “may

search the area within the arrestee’s immediate control, see Chimel [v. California], 395 U.S.

[752,] 763 [(1969)], and seize his or her personal effects that are evidence of the crime.”

Commonwealth v. Gilmore, 27 Va. App. 320, 328, 498 S.E.2d 464, 468 (1998).

       In Knowles v. Iowa, 525 U.S. 113 (1998), the United States Supreme Court declined to

expand the search incident to arrest exception to justify a search incident to a police officer’s

detention of an individual to issue a citation. Unless either of the two historical rationales for the

exception arise in a specific situation, namely “(1) the need to disarm the suspect in order to take

him into custody, and (2) the need to preserve evidence for later use at trial,” id. at 116, the

Court held there is no search incident to citation exception. Id. at 119. See also Lovelace v.

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Commonwealth, 258 Va. 588, 596, 522 S.E.2d 856, 860 (1999) (“After Knowles, an ‘arrest’ that

is effected by issuing a citation or summons rather than taking the suspect into custody does not,

by itself, justify a full field-type search.”). If either of the historic rationales for the search

incident to arrest exception exists, however, the permissible search must be limited to the extent

necessary to satisfy those specific concerns or needs. See id. at 596-97, 522 S.E.2d at 860.

        The police officers in this case observed appellant in a public park at night when the park

was closed. When asked about his presence there, appellant said he was drinking a beer.

Appellant said that the beer was in the bag he was carrying. Moreover, as Roy was unzipping

the bag but before he observed anything inside it, appellant admitted that the beer was open.

        Both drinking alcohol in a public place and possessing an open container of alcohol in a

Charlottesville city park are punishable as Class 4 misdemeanors. See Code § 4.1-308;

Charlottesville Code of Ordinances § 17-37. At the time Officer Roy unzipped the bag, he

possessed probable cause to believe appellant had committed or was committing both offenses.

Under the circumstances, however, Code § 19.2-74 authorized Officer Roy only to issue

appellant a summons for such an offense rather than place him under full custodial arrest.1


        1
            Code § 19.2-74(A)(2) provides:

                         Whenever any person is detained by or is in the custody of
                 an arresting officer for a violation of any county, city, or town
                 ordinance or of any provision of this Code, punishable as a Class 3
                 or Class 4 misdemeanor or any other misdemeanor for which he
                 cannot receive a jail sentence, . . . the arresting officer shall take
                 the name and address of such person and issue a summons or
                 otherwise notify him in writing to appear at a time and place to be
                 specified in such summons or notice. Upon the giving of such
                 person of his written promise to appear at such time and place, the
                 officer shall forthwith release him from custody.

Although an officer may proceed to arrest a suspect if he refuses or fails to discontinue the
unlawful act, the officer believes the suspect is likely to disregard the summons, or the suspect is
likely to cause harm to himself or others, see Code § 19.2-74(A)(1) and (2), no such
circumstances were present here.
                                                 -4-
        Despite the fact that Officer Roy could not search appellant or his property incident to an

offense for which he only could issue a citation, see Knowles, 525 U.S. 113, the officer could

lawfully detain appellant to investigate the alcohol violations and issue a summons. Appellant

admitted the beer was in his bag and the beer was open. It was reasonable for Officer Roy to

conclude that a search of the bag would yield evidence proving appellant had indeed committed

the alcohol violations. Presented with a definite need to preserve evidence of the suspected

offenses, Officer Roy was entitled to look inside appellant’s bag for the limited objective of

recovering such evidence.

        Officer Roy opened the bag and observed a container of beer that had been opened but

recapped. Beneath the beer was a firearm. Having lawfully opened appellant’s bag and observed a

firearm in plain view, Officer Roy needed no further justification to seize the weapon appellant had

carried about his person hidden from common observation. See Hilliard v. Commonwealth, 17

Va. App. 23, 26, 434 S.E.2d 911, 913 (1993) (articulating requirements of the plain view

exception); Code § 18.2-308.

        Because the police did not violate appellant’s Fourth Amendment rights in the search of

appellant’s bag and the seizure of the evidence, the trial court did not err in denying the motion to

suppress.2 Therefore, we affirm appellant’s conviction.

                                                                                            Affirmed.




        2
          Because we determine that the search of the bag was justified by the need to preserve
evidence, we need not consider whether exigent circumstances allowed the officers to dispense
with the search warrant requirement. See, e.g., Arkansas v. Sanders, 442 U.S. 753 (1979).
While our decision affirms the denial of the motion to suppress on grounds different from those
adopted by the trial court, the record reflects our reasoning was raised at trial and no further
factual resolution is needed to support our rationale. See Driscoll v. Commonwealth, 14
Va. App. 449, 452, 417 S.E.2d 312, 314 (1992).
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