                                              COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Huff, Judges Petty and Beales
UNPUBLISHED


              Argued by teleconference


              MICHAEL HARRIS, S/K/A
               MICHAEL WAYNE HARRIS
                                                                              MEMORANDUM OPINION* BY
              v.      Record No. 1149-16-2                                    JUDGE RANDOLPH A. BEALES
                                                                                     JULY 5, 2017
              COMMONWEALTH OF VIRGINIA


                                      FROM THE CIRCUIT COURT OF LOUISA COUNTY
                                                 Timothy K. Sanner, Judge

                                Reed C. Amos (Amos & Amos, PLLC, on briefs), for appellant.

                                Victoria Johnson, Assistant Attorney General (Mark R. Herring,
                                Attorney General, on brief), for appellee.


                      Appellant was indicted by a grand jury on November 9, 2015 on two charges of possession

              of a Schedule II controlled substance in violation of Code § 18.2-250. On February 1, 2016,

              appellant filed a pre-trial motion to suppress evidence obtained by law enforcement during a

              warrantless search and seizure. After a hearing on the motion to suppress on February 18, 2016, the

              trial court denied appellant’s motion. After a bench trial, the trial court found appellant guilty as

              charged and sentenced appellant to four years in prison, with three years and eight months

              suspended. On appeal, appellant argues the trial court erred in denying his motion to suppress.

                                                         I. BACKGROUND

                      We consider the evidence on appeal “in the light most favorable to the Commonwealth, as

              we must since it was the prevailing party” in the trial court. Beasley v. Commonwealth, 60

              Va. App. 381, 391, 728 S.E.2d 499, 504 (2012) (quoting Riner v. Commonwealth, 268 Va. 296,


                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
330, 601 S.E.2d 555, 574 (2004)). So viewed, the evidence established that Sergeant Robert Hix of

the Louisa County Sheriff’s Office responded to a 911 call on June 1, 2014. The 911 call

informed the authorities of an altercation involving an individual armed with a knife outside of a

home on Labor Lane. When Hix arrived at that location at approximately 11:21 a.m., he

observed two males standing on opposite sides of a roadway. Timothy Harris, appellant’s

brother (“the brother”), was standing about twenty feet away from appellant. When Hix arrived,

he observed appellant holding a folding knife with a three to four-inch blade. The knife was in

appellant’s right hand, and the blade was unfolded. As Hix arrived in his marked police vehicle,

he observed appellant place the knife on the hood of the parked car. Appellant then walked to

the rear of the vehicle as Sergeant Hix parked his service vehicle.

       Sergeant Hix got out of his vehicle and immediately handcuffed appellant. He explained

to appellant that he was detaining appellant for the purposes of officer safety based on the

reported altercation involving a knife. Hix testified that he performed a pat-down of appellant to

make sure there were no other weapons on him besides the folding knife that appellant had just

placed on the parked car. While patting down appellant’s right front pants pocket, Hix felt a

hard object approximately one inch in length. Hix then reached into that pocket and removed the

item. The item in question was a small glass vial that contained a substance later determined to

be PCP. After Hix had removed the vial, appellant stated, “[T]hat’s nothing but my PCP that I

use for pain management.” Hix testified that he removed the item from appellant’s front right

pocket because he wanted to make sure it was not a weapon. He testified that he had

encountered “knives as short as an inch” in his experience as a law enforcement officer. On

cross-examination, he admitted that he did not know what the item was just by feeling it through

appellant’s pants.




                                               -2-
       Sergeant Hix also patted down appellant’s left front pocket and noticed an object that felt

like a cigarette pack. Hix removed the item from the pocket and determined that it was a

cigarette pack. Upon opening the pack, Hix discovered a glass tube that appeared to be a

smoking device. The burnt residue found on the device was later determined to be cocaine. Hix

testified that he opened the cigarette pack to make sure that the pack did not contain any

weapons, such as razor blades. Sergeant Hix placed the contraband on top of his police vehicle.

During this interaction, Sergeant Hix spoke to appellant about the incident. Appellant told

Sergeant Hix that he “pulled the knife to keep [the brother] from leaving him” at the home of his

estranged wife.

       As Sergeant Hix concluded his interaction with appellant, a second law enforcement

officer arrived at the scene. Once the second officer arrived on the scene, Hix went to speak with

appellant’s brother. The brother testified that he was driving appellant to the home of appellant’s

estranged wife because the brothers had “had a falling out.” The brother stopped the car outside

the wife’s home and began to place appellant’s belongings out on the wife’s property by the edge

of the road. Because appellant had previously been ordered not to trespass on his wife’s

property, appellant protested and asked his brother to drive him to Maryland, but the brother

refused. The brother then grabbed appellant by the arm and tried to pull appellant out of the car.

Appellant then told his brother that he would stab him if he did not let him go.

       Appellant then called the sheriff’s department “to try to get them to do something about

[the brother] trying to force him to stay on the property that he wasn’t supposed to be on.” The

brother heard appellant tell the dispatcher over the phone that appellant had a knife and that he

would cut the brother’s car seats with it. Appellant then took the knife out of his pocket and

unfolded the blade while he remained on the phone. The brother told Sergeant Hix that he was




                                               -3-
afraid when appellant pulled out the knife.1 When Hix completed his interview of the brother, he

arrested appellant at 11:56 a.m. for misdemeanor assault.

       At the suppression hearing, appellant argued that the search and seizure of him were

impermissible under Terry v. Ohio, 392 U.S. 1 (1968). Regarding the vial found in appellant’s

right pocket, the trial court found that “given its shape and its extremely small dimensions, no

officer could have reasonably taken the glass vial for a knife or any other weapon.” The court

noted that Hix acknowledged in his testimony that “he did not know what the item was, and,

apparently, he just decided he would find out.” Regarding the removal and subsequent

inspection of the cigarette pack, the trial court concluded, “Such actions were plainly not

permitted as part of a Terry frisk.” However, the trial court ultimately denied appellant’s motion

to suppress. The court concluded, “Having reviewed the evidence, the Court finds that Sergeant

Hix, seeing what he did upon his arrival, would have had probable cause to believe that the

defendant was assaulting his brother by brandishing a knife at him.” The court specifically

found that Sergeant Hix had “probable cause to place the defendant under arrest for the crime of

assault and to search him incident to arrest.” The trial court further concluded that the evidence

would have been inevitably discovered because “Sergeant Hix had all the beliefs that he needed

to make the ultimate discovery and was pursuing this process prior to his excessive searching.”

Accordingly, the trial court found that “the two items allegedly possessing a controlled substance

should not be suppressed, given application of the inevitable discovery doctrine.”




       1
         At the suppression hearing, however, the brother testified that he never felt physically
threatened because he and appellant had “threatened each other in the past.”
                                              -4-
                                           II. ANALYSIS

                                      A. Standard of Review

       This Court reviews the trial court’s denial of appellant’s motion to suppress in accord

with familiar principles. In cases involving Fourth Amendment issues, “we give deference to the

historical facts determined by the circuit court, but we review de novo whether the legal standard

of probable cause was correctly applied to the historical facts.” Brown v. Commonwealth, 270

Va. 414, 419, 620 S.E.2d 760, 762 (2005).

                                 B. Inevitable Discovery Doctrine

       Appellant first argues that the search of appellant’s pants pockets exceeded a Terry frisk

and was unreasonable. He next argues that the trial court erred when it found that the evidence

was admissible pursuant to the inevitable discovery doctrine. Assuming, without deciding, that

Sergeant Hix’s search of appellant’s pants pockets was improper, we conclude the challenged

evidence was nevertheless admissible under the inevitable discovery doctrine.

       “Ordinarily, evidence obtained as the result of an unlawful search is subject to

suppression under the exclusionary rule.” Commonwealth v. Jones, 267 Va. 532, 535, 593

S.E.2d 204, 206 (2004) (citing Weeks v. United States, 232 U.S. 383 (1914); Hart v.

Commonwealth, 221 Va. 283, 287, 269 S.E.2d 806, 809 (1980)). However, “[o]ne of the

exceptions to the exclusionary rule is the doctrine of inevitable discovery.” Id. In order to

invoke the inevitable discovery doctrine, the Commonwealth must establish by a preponderance

of the evidence that the seized items “‘ultimately or inevitably would have been discovered by

lawful means’” despite the illegal conduct. Id. at 536, 593 S.E.2d at 206 (quoting Nix v.

Williams, 467 U.S. 431, 444 (1984)). The inevitable discovery exception permits admission of

the challenged evidence if the Commonwealth shows “‘(1) a reasonable probability that the

evidence in question would have been discovered by lawful means but for the police

                                               -5-
misconduct’” and “‘(2) that the leads making the discovery inevitable were possessed by the

police at the time of the misconduct.’” Id. at 536, 593 S.E.2d at 207 (quoting United States v.

Cherry, 759 F.2d 1196, 1204 (5th Cir. 1985)).

       In Jones, the defendant was seen fleeing from law enforcement officers while holding a

firearm in his right hand. After Jones was detained, one of the officers searched Jones’s person

without probable cause and found cocaine in his pocket. The Supreme Court found, because it

was the normal practice of that police officer to run a criminal history check when he found

someone in possession of a firearm, that it was reasonably probable that the officer would have

discovered that Jones was subject to arrest on a weapons charge and searched him incident to

that arrest. Id. at 537, 593 S.E.2d at 207. Thus, the Supreme Court applied the inevitable

discovery doctrine even though the officer did not obtain Jones’s criminal history until after

Jones had been arrested for possession of the drugs found during the improper search. Id. at 535,

593 S.E.2d at 206. Likewise, in Copeland v. Commonwealth, 42 Va. App. 424, 592 S.E.2d 391

(2004), this Court applied the inevitable discovery doctrine where the record showed that

probable cause existed to arrest the defendant for an independent drug possession charge and

where a search incident to that arrest would have yielded the other drugs ultimately discovered in

the defendant’s pocket during the unlawful search. Id. at 438-39, 592 S.E.2d at 397-98.

       Returning to the present matter, the Court now applies the two-part test from Jones. First,

we find that the evidence recovered from appellant would have been discovered by lawful means

but for the alleged police misconduct. The evidence established that Sergeant Hix responded to a

911 call reporting an altercation involving an individual armed with a knife outside of a home on

Labor Lane. When Sergeant Hix arrived at that exact address, he observed two males standing

on opposite sides of a narrow roadway separated by about twenty feet. One of the males,

appellant, was holding a three to four-inch folding knife in his right hand with the blade open and

                                                -6-
extended. When appellant saw Sergeant Hix approach in his marked police cruiser, appellant

immediately removed the knife from his hand and placed it on the hood of the vehicle next to

him. The evidence also established that Sergeant Hix interviewed the brother as part of his

investigation. The brother told Hix that appellant had threatened to stab him if he did not drive

appellant away from appellant’s wife’s property. The brother also stated that he felt fear when

appellant displayed the knife.

       Based on this record, we find that Sergeant Hix, without relying on his search of

appellant, developed probable cause to arrest appellant for assault. See Taylor v.

Commonwealth, 222 Va. 816, 820, 284 S.E.2d 833, 836 (1981) (“Probable cause exists when the

facts and circumstances within the officer’s knowledge, and of which he has reasonably

trustworthy information, alone are sufficient to warrant a person of reasonable caution to believe

that an offense has been or is being committed.”). Because Hix had probable cause to believe

that appellant had committed an assault, he was also authorized to arrest appellant for assault.

Pursuant to that arrest, it follows logically that Hix would have conducted a search of appellant’s

person incident to the arrest that would have yielded both items of contraband found in

appellant’s front pants pockets.

       Applying the second part of the inevitable discovery test, we find that the lead making the

discovery of the drugs in appellant’s pockets inevitable was known to Sergeant Hix prior to the

search of appellant. When Sergeant Hix responded to the scene of a reported altercation

involving a subject armed with a knife, he observed appellant holding out a knife in relatively

close proximity to his brother. Pursuant to that lead, appellant spoke to the brother, who told Hix

that appellant had threatened to stab him and that he felt fear when appellant displayed the knife.

Thus, the record is clear that Sergeant Hix’s pursuit of leads unrelated to his search of appellant’s

pockets led him to develop probable cause to arrest appellant for assault. The probable cause to

                                                -7-
arrest appellant also permitted Hix to search appellant incident to that arrest, leading inevitably

to the discovery of the contraband in appellant’s pockets. Accordingly, we find that Sergeant

Hix possessed sufficient information and leads prior to the allegedly unlawful search that made

the discovery of the drugs inevitable.

       As the Supreme Court noted in Jones, the purpose of the inevitable discovery doctrine is

to ensure that the prosecution is not “put in a worse position simply because of some earlier

police error or misconduct when the evidence would inevitably have been discovered.” 267 Va.

at 538, 593 S.E.2d at 208. Here, if Sergeant Hix had never searched appellant’s pockets, Hix

still would have obtained probable cause to arrest appellant for assault, arrested him for that

offense, and then searched appellant incident to that arrest and discovered the drugs. Therefore,

we find that it is clear that there was “‘a reasonable probability that the evidence in question

would have been discovered by lawful means’” and that “‘the leads making the discovery

inevitable were possessed by the police at the time of the misconduct.’” Id. at 536, 593 S.E.2d at

207 (quoting Cherry, 759 F.2d at 1204). For these reasons, we find that the trial court did not err

in admitting the challenged evidence pursuant to the inevitable discovery doctrine.2




       2
          The trial court also denied appellant’s motion to suppress appellant’s statement
regarding the PCP found in his pocket. The trial court held that no interrogation, or its functional
equivalent, had taken place and that appellant was not in custody for the purposes of Miranda v.
Arizona, 384 U.S. 436 (1966). On appeal, appellant has not challenged the ruling that no
Miranda violation took place. In addition, while appellant argues that the drugs were not subject
to the inevitable discovery doctrine, he has not raised that same argument on appeal about
inevitable discovery of his initial statements to Sergeant Hix regarding the PCP.
                                                 -8-
                                         III. CONCLUSION

       In summary, assuming without deciding that Sergeant Hix’s search of appellant’s pockets

was an improper search at the time it was made, we find that the challenged evidence was

nevertheless admissible pursuant to the inevitable discovery doctrine. The drugs would have

been inevitably discovered by lawful means, given that the information and leads making the

discovery inevitable were possessed by the police at the time of the search. Therefore, we find

that the trial court did not err in denying appellant’s motion to suppress, and we affirm

appellant’s convictions.

                                                                                            Affirmed.




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