                                  COURT OF APPEALS OF VIRGINIA


Present: Judges Kelsey, Haley and Senior Judge Bumgardner
Argued at Chesapeake, Virginia


NATHANIEL BOWE, JR.
                                                             MEMORANDUM OPINION * BY
v.     Record No. 0685-09-1                                  JUDGE JAMES W. HALEY, JR.
                                                                    APRIL 6, 2010
COMMONWEALTH OF VIRGINIA


                   FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
                                 Jerrauld C. Jones, Judge

                 J. Barry McCracken, Assistant Public Defender (Office of the Public
                 Defender, on brief), for appellant.

                 Gregory W. Franklin, Assistant Attorney General (William C. Mims,
                 Attorney General, on brief), for appellee.


                                                  I.

       After a bench trial, the circuit court found Nathaniel Bowe, Jr. (“Bowe”) guilty of

possessing cocaine and heroin, each with the intent to distribute, in violation of Code § 18.2-248.

The sole question for resolution on appeal is whether the circuit court erred in denying Bowe’s

pretrial motion to suppress the drugs. For the following reasons, we affirm.

                                                  II.

                                                 Facts

       On March 17, 2008, Officers Killian and Hoggard of the Norfolk police observed Bowe

walking towards a vehicle on property belonging to the Norfolk Redevelopment and Housing

Authority (“NRHA”). Killian was familiar with Bowe because on a previous day Killian had


       ∗
           Pursuant to Code § 17.1-413, this opinion is not designated for publication.
personally ordered Bowe to stay off of all NRHA property, and, for this reason, Killian exited his

police car, approached Bowe, and reminded him that he was banned from the property.

According to Killian, Bowe replied that he did remember this, but instead of leaving, Bowe told

Killian that: “[Killian] couldn’t keep [Bowe] from coming on the property to visit his people,

and that [Bowe] would come out there whenever he wanted.” Killian arrested Bowe for

trespassing.

       There was conflicting evidence as to what happened next. Killian testified that, after first

placing Bowe in handcuffs, he personally conducted a search of Bowe’s person incident to that

arrest. According to Killian, he was the only one to search Bowe and Killian did not remove

Bowe’s pants or expose Bowe’s buttocks to public view during the course of the search. But

according to Bowe’s cousin, Ricardo Cabarrus (“Cabarrus”), the younger officer – Killian

testified that Hoggard was the older of the two policemen – was the officer who placed Bowe in

handcuffs, but then left Bowe in the custody of the older officer, Hoggard, so that Killian could

search Cabarrus. Cabarrus further testified that it was the older officer, not the younger one, who

searched Bowe and that during this search the older officer pulled down Bowe’s pants and

underwear. Bowe’s testimony regarding the incident was consistent with Cabarrus’s and

inconsistent with Killian’s. But whoever searched Bowe, all the witnesses agreed that the police

did not discover any drugs as a result of the search of Bowe at the scene of his arrest. The police

then took Bowe to the police station, as he remained under arrest for trespassing.

       At the police station, Killian told a sheriff’s deputy to conduct a second “thorough

search” of Bowe. But before the deputy conducted any search, Killian asked Bowe whether he

had any narcotics. Killian testified that Bowe told him: “Yes. I have the dope in my ass.”

Killian further testified that, “I asked him if he wanted to recover it, or if he wanted me to, due to

the fact that I thought it would be less intrusive if he went ahead and recovered it himself.”


                                                 -2-
Killian did not give Bowe a warning pursuant to Miranda v. Arizona, 384 U.S. 436 (1966),

before asking Bowe about drugs. Killian put his own hand into a rubber glove after Bowe’s

statement about the drugs, but before asking Bowe whether he preferred to retrieve the drugs

himself or submit to Killian’s retrieval of the drugs. After Bowe retrieved a bag from his body

cavity, he gave it to Killian. Inside the bag were nineteen clear capsules, each containing

off-white powder, and eighteen smaller plastic bag corners, each containing white, solid material.

A certificate of analysis from the Department of Forensic Science was later introduced into

evidence at Bowe’s bench trial. According to the certificate, the off-white powder in the

capsules was cocaine and the white material in the plastic bag corners was heroin.

       During the hearing on Bowe’s pretrial motion to suppress, Deputy Sheriff Williams

(“Williams”) described the method of searching arrested persons who arrive at the booking area.

Williams said that the following procedure takes place before arrested prisoners are brought

before a magistrate for bail determination.

               Q:     Could you tell us what that standard procedure is?

               A:     Start from the shoulders in the neck area, then the armpits,
                      work my way down. I do a sweeping motion with both
                      hands around the waist, then I proceed to pull the T-shirt
                      up. I hold the T-shirt to the middle of the back where I can
                      see the buttocks and the waistband region. Pull the pants
                      and underwear from the body, and then I proceed to the
                      pockets, then down to the legs.

Williams also described a second, more thorough, search, which takes place after the arrested

person goes before the magistrate and before the person is incarcerated in the detention center.

               A:     Once the person has been booked, processed, they’re sent
                      into a facility. They’re taken up by a clothing deputy. The
                      clothing deputy will take the inmate over to a specific area
                      in the jail. They pull back the curtain, have the inmate take
                      off all outerwear civilian clothing, all underwear. They
                      have to squat, cough, then they’re given a jumpsuit and
                      their particular laundry; sheets, blankets, things of that
                      nature.

                                               -3-
              Q:      This takes place only after the magistrate has not granted
                      bond and they’re been ordered to be detained in the jail
                      itself?

              A:      Yes.

       The trial court granted Bowe’s motion to suppress the statement (“Yes. I have the dope

in my ass.”), because Bowe was in custody at the time he made the statement and Killian did not

give any Miranda warnings before asking whether he had drugs. 1 The trial court also stated that

he found Cabarrus’s account of the search of Bowe at the scene of Bowe’s arrest to be

“completely truthful.” Yet the trial court denied Bowe’s request to suppress the evidence of the

drugs, reasoning that Bowe’s arrest for trespassing was supported by probable cause and that the

sheriff’s deputies would inevitably have discovered the drugs, even if Bowe had never made the

unwarned statement. This appeal followed.

                                               III.

                                            Analysis

       In reviewing a trial court’s denial of a motion to suppress, we consider the evidence in

the light most favorable to the Commonwealth. McGee v. Commonwealth, 25 Va. App. 193,

197, 487 S.E.2d 259, 261 (1997) (en banc). “[A] defendant’s claim that evidence was seized in

violation of the Fourth Amendment presents a mixed question of law and fact that we review de

novo on appeal.” King v. Commonwealth, 49 Va. App. 717, 720, 644 S.E.2d 391, 392 (2007)

(citing Ornelas v. United States, 517 U.S. 690, 691 (1996)).

       Ordinarily, evidence obtained in violation of the Fourth Amendment, Mapp v. Ohio, 367

U.S. 643, 655 (1961), the Fifth Amendment, Murphy v. Waterfront Comm’n of New York

Harbor, 378 U.S. 52, 79 (1964), overruled in part on other grounds United States v. Balsys, 524


       1
        As the Commonwealth has not appealed this ruling, we express no opinion as to
whether it was correct.


                                              -4-
U.S. 666, 680-81 (1998), or the Sixth Amendment, United States v. Wade, 388 U.S. 218, 240-41

(1967), is inadmissible in the criminal trial of a defendant who has standing to object to that

evidence. This exclusionary rule also applies to certain secondary or derivative evidence that the

police discover as a result of certain constitutional violations. See Silverthorne Lumber Co. v.

United States, 251 U.S. 385, 391-92 (1920); Wong Sun v. United States, 371 U.S. 471, 484-87

(1963). There are exceptions to the exclusionary rule and the related “fruit of the poisonous tree

doctrine.” And one of them is the inevitable discovery exception. Nix v. Williams, 467 U.S.

431, 443 (1984); Warlick v. Commonwealth, 215 Va. 263, 266, 208 S.E.2d 746, 748 (1974);

Keeter v. Commonwealth, 222 Va. 134, 140 n.2, 278 S.E.2d 841, 845 n.2 (1981). According to

the inevitable discovery exception “evidence obtained by unlawful means is nonetheless

admissible ‘if the prosecution can establish by a preponderance of the evidence that the

information ultimately or inevitably would have been discovered by lawful means.’”

Commonwealth v. Jones, 267 Va. 532, 536, 593 S.E.2d 204, 206 (2004) (quoting Nix, 467 U.S.

at 444).

       Before reviewing the trial court’s ruling that inevitable discovery principles compelled

the denial of Bowe’s motion to suppress, we must resolve a dispute between the parties as to

whether this is a proper case to affirm the trial court’s judgment for reaching the right result,

while apparently misunderstanding the applicable law. See Whitehead v. Commonwealth, 278

Va. 105, 677 S.E.2d 265 (2009). Killian learned of the location of the drugs after he questioned

Bowe in custody without having first issued Miranda warnings, and the transcript of the pretrial

suppression hearing suggests that both the parties and the trial judge believed the Fifth

Amendment exclusionary rule applied to prevent the admission of any evidence obtained as a

result of Bowe’s unwarned statement unless the police would inevitably have discovered the

drugs in the absence of the Miranda violation. However, in United States v. Patane, 542 U.S.


                                                -5-
630 (2004), the United States Supreme Court restricted the scope of the exclusionary rule

applicable to violations of the Miranda rule. In Patane, five justices held that, when the police

violate Miranda, the exclusionary rule operates to exclude any statements obtained as a result of

the police questioning, but it does not affect the admissibility of “nontestimonial physical fruits”

of the unwarned statements, unless the defendant’s statement was involuntary within the

meaning of the Fifth Amendment. See id. at 637-39 (plurality opinion); id. at 644-45 (Kennedy,

J., concurring). At oral argument, counsel for Bowe conceded that Bowe’s statement was

voluntary. According to Patane, the trial court’s ruling on Bowe’s suppression motion –

excluding Bowe’s statement but not the physical fruits of the statement – was correct, even

though the trial court appeared to be unaware of Patane and based its ruling on the inevitable

discovery doctrine.

       Bowe argues that in Whitehead our Supreme Court restricted the application of the

right-result-wrong-reason analysis to cases in which the appellee argued the correct rationale to

the trial court. The Commonwealth never argued to the trial court that, under Patane, the

applicable exclusionary rule only demanded suppression of Bowe’s unwarned statement.

According to Bowe, it is, therefore, improper for us to consider Patane’s modification of the

exclusionary rule in deciding this appeal. We think this reading of Whitehead is overly broad,

particularly in light of language in the Whitehead opinion emphasizing that the right-result-

wrong-reason analysis remains appropriate so long as the appellate court can determine whether

or not the correct reason supports the trial court’s ruling without the benefit of additional

fact-finding.

                “[T]he proper application of this rule does not include those
                cases where, because the trial court has rejected the right
                reason or confined its decision to a specific ground, further
                factual resolution is needed before the right reason may be
                assigned to support the trial court’s decision.”


                                                -6-
               Harris v. Commonwealth, 39 Va. App. 670, 675, 576 S.E.2d 228,
               231 (2003), Blackman v. Commonwealth, 45 Va. App. 633,
               642-643, 613 S.E.2d 460, 465 (2005) (“an appellee may argue for
               the first time on appeal any legal ground in support of a judgment
               so long as it does not require new factual determinations.”)[.] We
               agree with these holdings by the Court of Appeals.

Whitehead, 278 Va. at 115, 677 S.E.2d at 270 (emphasis added). See also Perry v.

Commonwealth, 55 Va. App. 122, 129-30, 684 S.E.2d 227, 230 (2009) (discussing Whitehead);

Smith v. Commonwealth, 55 Va. App. 30, 48 n.10, 683 S.E.2d 316, 326 n.10 (2009) (same).

       The facts in the record are that, without first giving Miranda warnings, Killian asked

Bowe a question concerning drugs while Bowe was in custody, and Bowe’s answer to the

question led to the discovery of drugs. Given counsel’s concession that Bowe’s unwarned

statement was voluntary, we do not need more facts to recognize that Patane’s limitation to the

scope of the Fifth Amendment exclusionary rule applies to this case. For the reasons given in

Patane, the trial court’s ruling – granting Bowe’s motion to suppress his statement but denying

his motion to suppress the drugs – properly enforced the exclusionary rule applicable to

voluntary statements obtained in violation of Miranda. Given the facts in the record, Whitehead

is perfectly consistent with our recognition that Patane applies to this case.

       Even if we apply the Patane exclusionary rule – and, for the reasons mentioned above, we

must – Bowe argues that the law still demands the reversal of his convictions. This is so, the

argument continues, because the discovery of the drugs in this case was the tainted fruit of two

alleged violations of the Fourth Amendment. It is true that, unlike voluntary statements obtained

in violation of Miranda, violations of the Fourth Amendment generally require suppression of

both unlawfully-seized evidence and suppression of other incriminating evidence derived from

the unlawfully seized evidence, provided that the derivative evidence was seized as the result of

police exploitation of the original illegality. See Wong Sun, 371 U.S. at 488, Harris v.




                                                -7-
Commonwealth, 266 Va. 28, 34, 581 S.E.2d 206, 210 (2003). However, neither of the alleged

Fourth Amendment violations suggested by Bowe required suppression of the drugs in this case.

       According to Bowe, Killian acquired the drugs in violation of the Fourth Amendment by

placing his hand into a rubber glove while asking Bowe whether he would retrieve the drugs

himself or submit to Killian’s retrieval of the drugs. Bowe argues that Killian’s words and

conduct amounted to a highly coercive ultimatum, rendering involuntary Bowe’s subsequent

personal retrieval of the drugs from his body cavity. See, e.g. Crosby v. Commonwealth, 6

Va. App. 193, 199, 367 S.E.2d 730, 734 (1988) (“Acquiescence is not consent.”). Moreover,

Killian’s ultimatum came after Bowe’s voluntary statement in violation of Miranda and before

the police actually acquired the drugs. Thus, according to Bowe’s argument, the seizure of the

drugs is properly analyzed as an illegal seizure in violation of the Fourth Amendment.

       Assuming without deciding that Killian’s conduct violated the Fourth Amendment, see

Luginbyhl v. Commonwealth, 48 Va. App. 58, 64, 628 S.E.2d 74, 77 (2006) (“an appellate court

decides cases ‘on the best and narrowest ground available’” (quoting Air Courier Conference v.

Am. Postal Workers Union, 498 U.S. 517, 531 (1991) (Stevens, J. concurring))), the trial court’s

denial of Bowe’s motion was still correct because, even if Killian’s conduct had been otherwise,

the police ultimately and inevitably would have discovered the drugs. Bowe’s statement that he

had drugs in his body cavity came before Killian’s alleged Fourth Amendment violation.

Pursuant to Patane, the only remedy for Killian’s violation of Miranda was that no evidence of

Bowe’s unwarned statement would be admissible in his criminal trial. Given that the statement

could be used for any other purpose, we think it highly unlikely that Bowe would have been

admitted to bail by any magistrate who knew that Bowe had illegal drugs concealed in a body

cavity. See Code § 19.2-120 (persons in custody “shall be admitted to bail by a judicial officer,

unless there is probable cause to believe . . . his liberty will constitute an unreasonable danger to


                                                -8-
himself or the public.” (emphasis added)). And after Bowe’s admission to the jail as a pretrial

detainee, the police would no longer need a warrant or exigent circumstances before conducting

a body cavity search. Compare King v. Commonwealth, 49 Va. App. 717, 644 S.E.2d 391

(2007), with Craddock v. Commonwealth, 40 Va. App. 539, 580 S.E.2d 454 (2003).

               In Craddock, the defendant was ‘“processed to go into jail’ with
               the understanding that he had been ‘brought into the sheriff’s
               custody on a commitment brought by the magistrate for failure to
               appear.’” 40 Va. App. at 544, 580 S.E.2d at 457. According to
               written policies at the detention center, and based on knowledge
               that law enforcement had recently discovered drugs hidden in
               Craddock’s buttocks area, the deputies decided to conduct a strip
               search. Id. at 544-45, 580 S.E.2d at 457. During the course of the
               strip search, the deputies observed “a plastic bag with suspected
               narcotics between Craddock’s ‘butt cheeks.’” Id. at 545, 580
               S.E.2d at 457. A deputy was able to observe the plastic bag
               “without the need to spread Craddock’s ‘butt cheeks apart’ or to
               ‘manipulate his cheeks.’” Id.

               The search in Craddock was conducted after the defendant had
               been committed to jail as a pretrial detainee, in accordance with
               written policies and only after the deputies had a stated reason to
               believe that Craddock was hiding contraband. Id. at 544-45, 580
               S.E.2d at 457. The record also contained ample justification for
               searching Craddock, including testimony of previous attempts to
               smuggle drugs hidden in body cavities into the jail and the
               testimony of a physician that the amount of cocaine hidden by the
               defendant would have been lethal if the bag had burst. Id. at
               544-47, 580 S.E.2d at 457-59. In contrast, the record before us is
               devoid of any testimony that King was being admitted to a
               correctional facility. And, unlike Craddock, there was no
               testimony concerning under what circumstances the deputies had
               authority to conduct this type of search at the lockup or why such a
               search would be appropriate.

King, 49 Va. App. at 725-26, 644 S.E.2d at 395 (emphasis added). Even in the absence of the

alleged Fourth Amendment violation (Killian’s ultimatum), Bowe almost certainly would have

been denied bail and committed to the jail as a pretrial detainee. Once inside, the deputies would

have had a reason (Bowe’s statement) to believe Bowe was hiding contraband. King and

Craddock suggest that these circumstances would have justified a body cavity search. “It is


                                               -9-
clear, at least ‘by a preponderance of the evidence,’ that the drugs ‘ultimately and inevitably

would have been discovered by lawful means.’” Jones, 267 Va. at 538, 593 S.E.2d at 208

(quoting Nix, 467 U.S. at 444).

       Finally, Bowe argues the police violated the Fourth Amendment by pulling his pants

down and conducting an illegal strip search during the earlier search of Bowe at the scene of his

arrest. Killian testified that Bowe “clenched his buttocks” during this search, causing him to

suspect Bowe might be carrying drugs. Accordingly, the argument continues, Killian never

would have asked his question about drugs in violation of Miranda, and the police would never

have discovered the drugs, but for Killian’s original violation of the Fourth Amendment. But the

success of this argument depends on our taking all the facts and related inferences in the light

most favorable to Bowe, when, of course, our standard of review obliges us to do the opposite.

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

Bowe’s cousin, Cabarrus, whose testimony the trial court found to be “completely truthful,”

stated that Hoggard, not Killian, was the police officer who searched Bowe and pulled his pants

down at the scene of his arrest. Because, on appeal, we must assume that Killian was not

involved in the search that arguably violated the Fourth Amendment, Killian’s own, apparently

rejected, testimony of what he observed while conducting that search cannot logically connect

the alleged Fourth Amendment violation and Killian’s later discovery of the drugs.

                                                IV.

                                            Conclusion

       For these reasons, we hold that the trial court did not err in denying Bowe’s pretrial

motion to suppress. Bowe’s convictions and sentences are affirmed.



                                                                                          Affirmed.


                                               - 10 -
