                             COURT OF APPEALS OF VIRGINIA


Present: Judges Frank, Humphreys and Kelsey
Argued by teleconference


COMMONWEALTH OF VIRGINIA
                                                             MEMORANDUM OPINION* BY
v.     Record No. 2668-05-1                                 JUDGE ROBERT J. HUMPHREYS
                                                                   APRIL 4, 2006
DOROTHY VINETTA BRIGGS


              FROM THE CIRCUIT COURT OF THE CITY OF WILLIAMSBURG
                           AND COUNTY OF JAMES CITY
                            Samuel Taylor Powell, III, Judge

               Leah A. Darron, Assistant Attorney General (Robert F. McDonnell,
               Attorney General, on brief), for appellant.

               D.R. Dansby for appellee.


       The Commonwealth appeals the trial court’s ruling granting Dorothy Vinetta Briggs’

motion to suppress the evidence found during a traffic stop. On appeal, the Commonwealth

contends that the trial court erred in finding that the officers could not ask Briggs whether she

had drug paraphernalia on her person, and in finding that the officers did not have reasonable

suspicion to conduct an investigatory stop. For the following reasons, we hold that the trial court

erred in granting the motion to suppress, and, thus, we reverse and remand.

                                         BACKGROUND

       “In 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.” Commonwealth v.

Peterson, 15 Va. App. 486, 487, 424 S.E.2d 722, 723 (1992). The trial court’s “findings of fact


       *
          Pursuant to Code § 17.1-413, this opinion is not designated for publication. Moreover,
as this opinion has no precedential value, we recite only those facts necessary to our holding.
are entitled to a presumption of correctness unless they are plainly wrong or without evidence to

support them.” Id. So viewed, the evidence established the following.

       On May 16, 2005, James City County Police Investigators Thomas Johnson (“Johnson”),

Michelle Toutaint (“Toutaint”), and Damon Radcliffe (“Radcliffe”), pulled over a vehicle driven

by Dorothy Vinetta Briggs (“Briggs”). The officers, who were members of the Colonial

Narcotics Enforcement Task Force, were dressed in plain clothes and riding in an unmarked

police car. Initially, the officers noticed Briggs when a man leaned into the passenger’s side

window of Briggs’ vehicle while she was parked at the intersection of Pocahontas Trail and

Magruder Avenue. The man got into Briggs’ vehicle, Briggs drove one block, and the man then

got out.1 According to Johnson, Briggs then “made a sharp right, increased speed, [and] was

driving on the . . . wrong side of the roadway.” In fact, her vehicle was “all the way over to the

grassy area.” Johnson activated his emergency lights and effectuated a traffic stop as Briggs

pulled into her driveway.

       Johnson and Toutaint approached the driver’s side of the vehicle, and Radcliffe stayed

behind.2 Johnson asked Briggs for her license and registration, and Briggs responded that her

license was suspended. Johnson asked Briggs to step out of her vehicle, and he then asked if she

had any type of identification. Briggs produced a Virginia I.D., but did not have her registration.

While standing by the vehicle, Johnson radioed dispatch to confirm that Briggs had a suspended

license.



       1
          Johnson and Toutaint testified that this area was an open-air drug market. Based on
their training and experience, the officers knew that individuals looking for drugs would often
meet the dealer on the street, pick him or her up in the car, make the drug transaction, and then
drop the dealer off a short distance later.
       2
         The testimony differs as to where Radcliffe actually stood. Johnson testified that
Radcliffe stayed by the police vehicle, while Toutaint testified that he was by the passenger side
of Briggs’ vehicle.
                                               -2-
       While waiting for a response, Johnson asked Briggs about the man who had been in her

vehicle. He also asked Briggs if she “had anything illegal on her,” and, if she did, he told her to

turn it over “right now.” Briggs denied having anything illegal on her person. However,

Toutaint proceeded to ask Briggs “where her crack cocaine stem was.” According to Toutaint,

Briggs did not respond orally. Instead, Briggs “gave an affirmative head motion and proceeded

to reach over the passenger’s seat and pick up a red purse.”

       Briggs began to rummage through her purse. Fearing she might have a weapon, Johnson

took the purse and searched it.3 Inside, Johnson found a cocaine stem with cocaine residue. The

officers then searched Briggs’ car, but did not find any packaged cocaine. Johnson arrested

Briggs, and, on September 24, 2005, Briggs was indicted on one count of possession of cocaine,

in violation of Code § 18.2-250, and on one count of driving on a suspended license, in violation

of Code § 46.2-301.

       On October 25, 2005, the trial court granted Briggs’ pretrial motion to suppress the

cocaine stem and the cocaine residue. The trial court reasoned that the officers lacked

“reasonable suspicion [to conduct an investigatory stop],” also noting that, “while she’s in

custody I don’t think they are entitled to question her just about anything.” The Commonwealth

now appeals.

                                            ANALYSIS

       On appeal from a trial court’s ruling on a motion to suppress, the appellant must show

that the trial court’s decision constituted reversible error. See Stanley v. Commonwealth, 16

Va. App. 873, 874, 433 S.E.2d 512, 513 (1993). We view the evidence in the light most

favorable to the prevailing party, granting to it all reasonable inferences fairly deducible



       3
          Toutaint testified that Briggs willingly handed the purse to Johnson. Both officers
testified that, in either circumstance, they did not ask Briggs for permission to search her purse.
                                                -3-
therefrom, see Commonwealth v. Grimstead, 12 Va. App. 1066, 1067, 407 S.E.2d 47, 48 (1991),

and we review the trial court’s findings of historical fact only for clear error, see Shears v.

Commonwealth, 23 Va. App. 394, 398, 477 S.E.2d 309, 311 (1996). However, we review de

novo the trial court’s application of defined legal standards to the particular facts of a case. Id.;

see also Ornelas v. United States, 517 U.S. 690, 697 (1996).

       The Commonwealth contends the trial court erred in finding (1) that the officers could

not ask questions regarding drug paraphernalia without first giving Miranda warnings, and (2)

that the officers did not have reasonable suspicion to conduct an investigatory stop. We agree,

and, thus, reverse and remand this case for further proceedings consistent with this opinion.

                 A. Whether Miranda Warnings Were Required to Continue Questioning

       Initially, we must consider whether the officers, without first administering Miranda

warnings, were permitted to ask Briggs questions unrelated to the original purpose of the traffic

stop. Because Briggs was not in custody when the officers asked whether she possessed any

drug paraphernalia, we hold that the United States Supreme Court’s holding in Miranda v.

Arizona, 384 U.S. 436 (1966), was not implicated. Accordingly, the officers’ questioning did

not implicate Briggs’ Fifth Amendment right against compelled self-incrimination.

       Miranda warnings are required whenever a suspect is subjected to “custodial

interrogation.” Miranda, 384 U.S. at 444. However, every detention does not necessarily

constitute custodial interrogation for purposes of Miranda. Rather, a person is in custody for

Miranda purposes only when the person’s “freedom of action is curtailed to a ‘degree associated

with formal arrest.’” Berkemer v. McCarty, 468 U.S. 420, 440 (1984) (quoting California v.

Beheler, 463 U.S. 1121, 1125 (1983) (per curiam)).

       Whether a suspect is “in custody” for purposes of Miranda turns upon “how a reasonable

man in the suspect’s position would have understood his situation.” Id. at 442. In other words,

                                                 -4-
“a suspect is ‘in custody’ when the objective circumstances would lead a reasonable person to

believe he was under arrest, thereby subjecting him or her to pressure impairing the free exercise

of the privilege against self-incrimination.” Cherry v. Commonwealth, 14 Va. App. 135, 140,

415 S.E.2d 242, 244-45 (1992); see also Bosworth v. Commonwealth, 7 Va. App. 567, 572, 375

S.E.2d 756, 759 (1989) (“A motorist stopped by police for a traffic infraction is not subject to the

protections prescribed by Miranda until he is subjected to treatment that places him in custody.”

(internal citations omitted)). “The circumstances may include factors such as the familiarity or

neutrality of the surroundings, the number of officers present, the degree of physical restraint, the

duration and character of the interrogation, the presence of probable cause to arrest, and whether

the suspect has become the focus of the investigation.” Id. (citing Wass v. Commonwealth, 5

Va. App. 27, 33, 359 S.E.2d 836, 839 (1987)).

       Based upon this definition of “custody,” this Court has held that

               [a] routine, roadside traffic stop and the usual questioning
               associated with such a brief stop generally will not be considered
               “custodial interrogation” because the detention is usually of very
               short duration and the attendant circumstances “are not such that
               the motorist feels completely at the mercy of police.” Such stops
               are usually in public and only one or perhaps two officers are
               usually present. Consequently, Miranda warnings are not required
               prior to the type [of] questioning usually associated with such
               stops.

Cherry, 14 Va. App at 138-39, 415 S.E.2d at 243-44. Moreover, even if the underlying purpose

of the traffic stop is to investigate possible narcotics activity, that stop does not automatically

become “custodial” for purposes of Miranda. Id. That is, regardless of the officer’s subjective

purpose in “seizing” the suspect, the test for “custody” remains the same. Hence, Miranda rights

must be given to a traffic stop detainee only if the individual has been formally arrested, or if the

individual’s freedom has been curtailed “to a degree associated with arrest.” United States v.

Sullivan, 138 F.3d 126, 130 (4th Cir. 1998).

                                                 -5-
       In this case, we find that Briggs was not in custody for purposes of Miranda. Although

Briggs was not “free to leave” and, thus, had been “seized” within the meaning of the Fourth

Amendment, the test for Miranda requires more. The critical issue is whether Briggs was in

custody or otherwise deprived of her freedom of action in any significant way. Miranda, 384

U.S. at 444; May v. Commonwealth, 3 Va. App. 348, 352, 349 S.E.2d 428, 430 (1986). In other

words, we must determine if Briggs was detained to a “degree associated with formal arrest.”

Berkemer, 468 U.S. at 440. We conclude that she was not.

       Here, Briggs was pulled over by three plainclothes officers in an unmarked police truck.

Two of the officers approached the driver’s side door and asked Briggs for her identification.

The officers did not draw their weapons, nor did they use any other method of force. Although

Johnson retained Briggs’ identification while waiting for a response from dispatch, Briggs was

not placed in handcuffs.4 Moreover, Briggs was not told she was under arrest until after Johnson

found her cocaine “stem.” Thus, although the officers had properly detained Briggs because of a

traffic violation supported by probable cause, and although Toutaint testified that Briggs was not

“free to leave,” we find that these circumstances do not present a situation equivocal to a formal

arrest. Therefore, we find that the trial court erred in finding Miranda warnings should have

been given before the officers could continue to question Briggs.




       4
         Briggs argues that Johnson’s failure to return her identification should be considered
when addressing the issue of whether Briggs was in custody for the purposes of Miranda. Briggs
cites Richmond v. Commonwealth, 22 Va. App. 257, 468 S.E.2d 708 (1996), to support the
contention that Johnson’s retention of Briggs’ identification automatically turned the stop into an
investigative detention, during which Briggs was not “free to leave.” We agree with that
contention, as Toutaint testified that Briggs was not “free to leave.” However, as we note below,
“custody” implicating Miranda is conceptually distinct from a “seizure” implicating the Fourth
Amendment. Thus, although the issue of whether the defendant had been “seized” within the
meaning of the Fourth Amendment may be a factor in determining whether Briggs was in
custody for purposes of Miranda, it is not dispositive.
                                                -6-
              B. Whether the Officers Violated Briggs’ Fourth Amendment Rights

       We must next decide whether the seizure, and the resulting search of Briggs’ purse,

violated her Fourth Amendment rights. For the following reasons, we hold that both the initial

seizure and the resulting search pass muster under the Fourth Amendment. Accordingly, we

hold that the trial court erred in granting Briggs’ motion to suppress.

                                 1. The Initial Seizure Was Valid

       Initially, we note that “[t]he ‘custody’ that implicates the Miranda rule is conceptually

distinct from a seizure implicating the Fourth Amendment. . . . Even though a routine traffic

stop does not amount to a custodial detention of the motorist, it does constitute a ‘seizure’ within

the meaning of the Fourth Amendment.” Sullivan, 138 F.3d at 131. Thus, because a traffic stop

constitutes a “seizure,” the stop must be supported by either reasonable suspicion or probable

cause to believe a crime, such as a traffic violation, has occurred. See Dickerson v.

Commonwealth, 35 Va. App. 172, 177, 543 S.E.2d 623, 626 (2001). As long as the stop is

supported by reasonable suspicion or probable cause, the officer who made the stop may

“request a driver’s license, insurance papers, vehicle registration, run a computer check thereon,

and issue a citation.” United States v. Shabazz, 993 F.2d 431, 437 (5th Cir. 1993).

       Once the purpose of the traffic stop has been completed, however, the stop may not be

extended absent consent or additional information amounting to reasonable suspicion or probable

cause. See Dickerson, 35 Va. App. at 178, 543 S.E.2d at 626. However, during the stop, the

officer may question the person on subjects not directly related to the reasons that provided the

basis for the stop, even if he lacks reasonable suspicion as to the unrelated subjects. See Muehler

v. Mena, 544 U.S. 93 (2005) (holding that officers are not required to have independent

reasonable suspicion in order to question individuals on subjects not related to the purpose of the

stop); Illinois v. Caballes, 543 U.S. 405 (2005) (holding that a dog sniff performed during a

                                                -7-
traffic stop does not violate the Fourth Amendment); Shabazz, 993 F.2d at 437 (approving

questioning about travel plans and request for consent to search from driver stopped for speeding

while police awaited results of computer check of driver’s license). The officer can ask these

unrelated questions so long as “the detention to that point continues to be supported by the facts

that justified its initiation,” and “the questioning [does] nothing to extend the duration of the

initial, valid seizure.” Id.; see also United States v. Childs, 277 F.3d 947 (7th Cir. 2002) (en

banc); State v. Hickman, 763 A.2d 330, 336-38 (N.J. Super. Ct. App. Div. 2000). But see United

States v. Holt, 264 F.3d 1215, 1229-30 (10th Cir. 2001) (en banc) (rejecting reasoning of

Shabazz).

       In this case, the officers first noticed Briggs because of behavior consistent with a drug

transaction. Specifically, a man approached her passenger window, got into the car, rode one

block, and then exited the vehicle. However, the officers then watched Briggs violate a traffic

law. Specifically, Briggs made a sharp turn and drove a short distance on the wrong side of the

road. Thus, according to Johnson, he had two concerns when he pulled over the vehicle: “[one,]

that the vehicle was driving on the wrong side of the roadway. Two, it was possible that the

operator just purchased drugs from the male that got out of the car.”

       Here, regardless of whether the officers had reasonable suspicion to believe a drug

transaction had taken place, the record clearly indicates that Briggs was driving on the wrong

side of the road. This gave Johnson probable cause to stop the vehicle. Accordingly, Briggs’

initial seizure did not violate the Fourth Amendment. Also, while Johnson was waiting for

dispatch to confirm whether Briggs’ license was suspended, he asked Briggs about her encounter

with the male passenger. Although the questions were not related to why she may have been

driving on the wrong side of the road, the justification for the stop had not yet been completed.




                                                 -8-
Moreover, the questions did not prolong the detention. Therefore, we hold that Johnson’s and

Toutaint’s questions did not impermissibly extend the scope of the stop.

       For these reasons, we hold that the initial seizure, even when coupled with the officers’

questioning, did not violate Briggs’ Fourth Amendment rights.

       2. The Resulting Search of Briggs’ Purse Did Not Violate the Fourth Amendment

       When an officer, “trained and experienced in crime control, ha[s] probable cause to

believe [a] defendant [i]s participating in a felony committed in [his] presence,” that officer

“ha[s] the right to make a warrantless arrest.” Brinegar v. United States, 338 U.S. 160 (1949);

Bryson v. Commonwealth, 211 Va. 85, 86-87, 175 S.E.2d 248, 250 (1970). And because the

warrantless arrest is lawful, the officer may conduct a warrantless search of the defendant’s

person incident to that lawful arrest, regardless of whether the object of the search is weapons or

evidence. Chimel v. California, 395 U.S. 752, 763 (1969); Draper v. United States, 358 U.S.

307, 314 (1959). When the product of the search is not essential to probable cause to arrest, and

“the formal arrest follow[s] quickly on the heels of the challenged search of [the defendant’s]

person,” it is not “particularly important that the search preceded the arrest rather than vice

versa.” Rawlings v. Kentucky, 448 U.S. 98, 111 (1980).

       In this case, Johnson asked Briggs if she “had anything illegal on her.” Briggs initially

denied having anything illegal on her person. However, Toutaint asked Briggs “where her crack

cocaine stem was,” and Briggs “gave an affirmative head motion and proceeded to reach over the

passenger’s seat and pick up a red purse.” According to Johnson, he then asked Briggs if the

“stem” was in her purse, to which Briggs responded “yes.” However, Toutaint could not recall

whether Johnson asked this question.5



       5
         Although the testimony is not in conflict — i.e., Toutaint did not unequivocally state
that Johnson did not ask the question — we must, and do, view the testimony in the light most
                                              -9-
       Clearly, Briggs had the opportunity to say that she did not have a crack stem. Instead,

when asked where her stem was, Briggs nodded with her head and reached for her purse. In

essence, Briggs admitted that she possessed a crack cocaine stem. This gave Johnson and

Toutaint probable cause to believe that Briggs was committing a felony in their presence, as well

as the authority to make a warrantless arrest. See Brinegar, 338 U.S. at 160; Bryson, 211 Va. at

86-87, 175 S.E.2d at 250. The fact that Johnson retrieved the stem immediately before arresting

Briggs “is not particularly important,” and, thus, does not invalidate the search. Rawlings, 448

U.S. at 111. Therefore, we hold that Johnson did not violate Briggs’s Fourth Amendment rights

when he searched Briggs’ purse.

                                          CONCLUSION

       For these reasons, we hold that, because Briggs was not in “custody,” the officers were

not required to give Miranda warnings prior to asking Briggs whether she possessed any illegal

narcotics paraphernalia. Moreover, because the initial traffic stop was supported by probable

cause, and because the officers did not impermissibly extend the scope of the stop by asking

questions regarding drug paraphernalia, we hold that Briggs’ seizure did not violate the Fourth

Amendment. Finally, because the officers had probable cause to arrest Briggs prior to opening

her purse, we hold that the search was a valid search incident to arrest and, thus, did not violate

the Fourth Amendment. Accordingly, we reverse the trial court’s decision granting the motion to

suppress and remand this case for further proceedings consistent with this opinion.

                                                                           Reversed and remanded.




favorable to Briggs as the party who prevailed below. Grimstead, 12 Va. App. at 1067, 407
S.E.2d at 48.
                                              - 10 -
