                                             COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Huff, Judges Decker and AtLee
UNPUBLISHED


              Argued at Chesapeake, Virginia


              ANTHONY LAMONT PURVIS
                                                                           MEMORANDUM OPINION* BY
              v.     Record No. 0921-14-1                                  JUDGE RICHARD Y. ATLEE, JR.
                                                                               FEBRUARY 23, 2016
              COMMONWEALTH OF VIRGINIA


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

                               J. Barry McCracken, Assistant Public Defender, for appellant.

                               Steven A. Witmer, Senior Assistant Attorney General (Mark R.
                               Herring, Attorney General, on brief), for appellee.


                     Charged with cocaine distribution, Anthony Lamont Purvis moved to suppress evidence

              discovered on his person, in his car, and in his home. He alleged that his Fourth Amendment

              rights were violated when police searched his car and his person with invalidly-obtained consent,

              and later used the fruits of those searches to obtain a search warrant.1 He now appeals the trial

              court’s denial of his motion to suppress.2 We affirm.




                     *
                         Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                     1
                       Purvis’s only challenge to the issuance of the search warrant for his residence is that the
              searches of his person and car were unreasonable and, therefore, that the fruits of those searches
              could not provide a basis for the issuance of a warrant. He does not challenge the search of his
              residence on any other ground.
                     2
                      Judge Jerrauld C. Jones accepted Purvis’s conditional guilty plea in this case. Judge
              Mary Jane Hall heard the motion to suppress that is the subject of this appeal.
                                           I. BACKGROUND

       “In reviewing the denial of a motion to suppress evidence claiming a violation of a

person’s Fourth Amendment rights, we consider the facts in the light most favorable to the

Commonwealth, the prevailing party at trial.” Malbrough v. Commonwealth, 275 Va. 163, 168,

655 S.E.2d 1, 6 (2008). So viewed, the facts are as follows.

       On October 3, 2013, uniformed Officers McMullen and Smith of the Norfolk Police

Department were on patrol in an unmarked police vehicle. Shortly before 10:00 p.m., Officer

McMullen activated the vehicle’s emergency lights and siren and stopped a car after seeing it

make an improper right turn from the center lane.3 He approached the car and found Purvis to be

the driver. Officer Smith approached a woman in the passenger seat and began speaking with

her. Officer McMullen saw that Purvis was nervous and that his hands were shaking. When

Officer McMullen asked for his license, Purvis admitted that it was suspended. (The officer

confirmed Purvis’s license suspension.) Officer McMullen then told Purvis that he “wasn’t

overly concerned with [Purvis’s] driver’s license being suspended due to his cooperation” and

asked if he could search Purvis “and the vehicle for any weapons or narcotics that he might have

on him or in the vehicle.” In response, Purvis exited the car and consented to a search of his

person and his car.

       Officer McMullen searched Purvis and Purvis’s passenger, but found nothing

incriminating. During his search of the front passenger-side door of the car, however, Officer

McMullen found a straw and a folded dollar bill inside a cigarette box, both containing a

substance later confirmed to be cocaine residue. While Purvis and the officers were still on the

side of the road, Detective Carpenter of the Norfolk Police Department arrived. Officer



       3
           Purvis does not contest the validity of the stop.

                                                  -2-
McMullen advised Detective Carpenter that Purvis had given consent to search his person and

his vehicle. Officer McMullen also informed Detective Carpenter of the suspected cocaine

found in the vehicle. Detective Carpenter then approached Purvis, who was in handcuffs by this

time, and asked him if his passenger “had given him anything illegal to hide during the traffic

stop.” Purvis replied in the affirmative, and Detective Carpenter proceeded to search him. When

Purvis lifted his right pant leg, a bag fell to the ground, containing what Detective Carpenter

suspected was cocaine. A field-test confirmed Detective Carpenter’s suspicion. Purvis never

revoked his consent for the search of the car or his person by either Officer McMullen or

Detective Carpenter, nor did he limit the scope of these searches in any way.

       Based on the cocaine found in the search of Purvis and his car, a search warrant was

obtained and executed at Purvis’s home. There, police found more cocaine, as well as packaging

material, cutting agents, and a scale. Purvis was charged with distribution of cocaine. Officer

McMullen did not charge Purvis with the improper turn or with driving on a suspended license.

       Purvis moved to suppress the items found in the search of his person, vehicle, and home,

alleging that his rights under the Fourth Amendment were violated. The trial court denied his

motion. Purvis then entered a conditional guilty plea to the charge. The trial court accepted the

conditional guilty plea, convicted him, and sentenced him to fifteen years in the penitentiary,

suspending six years.

                                           II. ANALYSIS

       The Fourth Amendment to the United States Constitution states:

               The right of the people to be secure in their persons, houses,
               papers, and effects, against unreasonable searches and seizures,
               shall not be violated, and no Warrants shall issue, but upon
               probable cause, supported by Oath or affirmation, and particularly
               describing the place to be searched, and the persons or things to be
               seized.



                                                -3-
       Purvis does not challenge the stop of his vehicle for a traffic infraction. Nor does he

disagree that his operator’s license was suspended at the time he was stopped. Instead, Purvis

argues that, “[h]aving elected to forgo further prosecution of the alleged traffic offenses, the

officer’s extension of the stop to investigate possible drug offenses without a reasonable and

articulable basis to do so constituted an impermissible seizure of [Purvis].” We disagree with the

premise underlying the assignment of error. Viewing Officer McMullen’s actions objectively,

we find that he had probable cause to arrest Purvis for driving on a suspended license, and thus

to search his person incident to arrest. We also find that Officer McMullen obtained valid

consent to search Purvis’s vehicle. As such, Officer McMullen needed no additional suspicion to

justify the searches.

                                     A. STANDARD OF REVIEW

       In challenging a trial court’s ruling that a search was reasonable under the Fourth

Amendment, “[t]he burden is on the defendant to show that the trial court committed reversible

error.” Malbrough, 275 Va. at 168, 655 S.E.2d at 6. As an appellate court, “we give deference

to the factual findings of the circuit court.” Bay v. Commonwealth, 60 Va. App. 520, 535, 729

S.E.2d 768, 775 (2012) (quoting Brooks v. Commonwealth, 282 Va. 90, 94, 712 S.E.2d 464, 466

(2011)). Those findings are binding on appeal unless “plainly wrong or unsupported by the

evidence.” Malbrough, 275 Va. at 168, 655 S.E.2d at 7. However, “we independently determine

whether the manner in which the evidence was obtained meets the requirements of the Fourth

Amendment.” Bay, 60 Va. App. at 535, 729 S.E.2d at 775 (quoting Brooks, 282 Va. at 94, 712

S.E.2d at 466). In making this independent determination, we apply a de novo standard of

review to the overarching question of whether a seizure of evidence violated the Fourth

Amendment. See Glenn v. Commonwealth, 275 Va. 123, 130, 654 S.E.2d 910, 913 (2008).




                                                -4-
       We analyze law enforcement officers’ decisions regarding searches and seizures

objectively. See Slayton v. Commonwealth, 41 Va. App. 101, 109, 582 S.E.2d 448, 451 (2003)

(“Probable cause . . . turns only on ‘“objective facts,” not the “subjective opinion” of a police

officer.’” (quoting Golden v. Commonwealth, 30 Va. App. 618, 625, 519 S.E.2d 378, 381

(1999))). Generally speaking, in order for a warrantless search to be reasonable under the Fourth

Amendment, it must be supported by probable cause or consent. See, e.g., Knight v.

Commonwealth, 61 Va. App. 297, 312, 734 S.E.2d 716, 723-24 (2012).

                                 B. SEARCH OF PURVIS’S PERSON

                                    1. Probable Cause to Arrest

       Although Officer McMullen may have announced that he was subjectively unconcerned

with Purvis’s suspended license, objectively, Officer McMullen still had probable cause to

believe that Purvis was driving on a suspended license. Driving on a suspended license in

violation of Code § 46.2-301 is a misdemeanor offense for which an officer may arrest a suspect.

In Virginia v. Moore, 553 U.S. 164 (2008), the United States Supreme Court confirmed: “When

officers have probable cause to believe that a person has committed a crime in their presence, the

Fourth Amendment permits them to make an arrest . . . .” Id. at 178.

       It is immaterial to our analysis that Officer McMullen may have had some other,

subjective, reason for effecting a seizure of Purvis’s person, such as to investigate possible

narcotics possession. An officer’s “subjective reason for making the arrest need not be the

criminal offense as to which the known facts provide probable cause.” Devenpeck v. Alford,

543 U.S. 146, 153 (2004). “[T]he Fourth Amendment’s concern with ‘reasonableness’ allows

certain actions to be taken in certain circumstances, whatever the subjective intent.” Whren v.

United States, 517 U.S. 806, 814 (1996); see also Poindexter v. Commonwealth, 16 Va. App.

730, 731-34, 432 S.E.2d 527, 528-30 (1993) (holding that an officer who executed a traffic stop

                                                -5-
for speeding, then developed probable cause to believe the suspect was driving on a suspended

license, and had the suspect exit the vehicle for that reason, was permitted to seize the drugs

located during a subsequent confrontation with the suspect, even though the officer never

arrested the suspect for the traffic charges that initially justified his seizure of the suspect);

Slayton, 41 Va. App. at 109, 582 S.E.2d at 452 (“The absence of probable cause to believe a

suspect committed the particular crime for which he was arrested does not necessarily invalidate

the arrest if the officer possessed sufficient objective information to support an arrest on a

different charge.”). Accordingly, the objective existence of probable cause to arrest Purvis for

driving on a suspended license rendered his ongoing seizure reasonable.

                              2. Authority to Search Incident to Arrest

        Having the objective authority to arrest Purvis, Officer McMullen also possessed the

objective right to search Purvis incident to arrest. A suspect who has been arrested is subject to

search of his person incident to that arrest, because police officers are permitted “to search the

suspect in order to safeguard evidence and ensure their own safety.” Moore, 553 U.S. at 178; see

Joyce v. Commonwealth, 56 Va. App. 646, 658, 696 S.E.2d 237, 243 (2010) (“The power to

arrest is invariably coupled with the power to search incident to arrest.”); see also Moore, 553

U.S. at 177 (“A custodial arrest of a suspect based on probable cause is a reasonable intrusion

under the Fourth Amendment; that intrusion being lawful, a search incident to the arrest requires

no additional justification.” (quoting United States v. Robinson, 414 U.S. 218, 235 (1973))).

        While “[i]t is axiomatic that an incident search may not precede an arrest and serve as

part of its justification,” Sibron v. New York, 392 U.S. 40, 63 (1968) (emphasis added), a search

may permissibly precede the arrest to which it is incident as long as the arrest is independently

supported by probable cause. “A constitutionally permissible search incident to arrest ‘may be

conducted by an officer either before or after the arrest.’” Joyce, 56 Va. App. at 657, 696 S.E.2d

                                                  -6-
at 242 (quoting Italiano v. Commonwealth, 214 Va. 334, 336, 200 S.E.2d 526, 528 (1973)); see

also Parker v. Commonwealth, 255 Va. 96, 105-06, 496 S.E.2d 47, 53 (1998) (“The United

States Supreme Court has stated that ‘where the formal arrest followed quickly on the heels of

the challenged search of petitioner’s person, we do not believe it particularly important that the

search preceded the arrest rather than vice versa.” (quoting Rawlings v. Kentucky, 448 U.S. 98,

111 (1980))). Although Officer McMullen did not immediately place Purvis in handcuffs or tell

him that he was under arrest, opting instead to seek consent for a search, this does not affect the

validity of the searches of Purvis’s person as incident to an arrest supported by probable cause.

        Purvis was handcuffed, searched by Officer McMullen, and later searched by Detective

Carpenter.4 Regardless of the subjective reason behind Officer McMullen’s and Detective

Carpenter’s searches of Purvis, those searches were justified by Officer’s McMullen’s objective

authority to arrest Purvis for driving on a suspended license.5 As such, the searches of Purvis’s

person were reasonable.




       4
          The fact that the search of Purvis’s person that ultimately yielded the large bag of
cocaine was conducted by Detective Carpenter, and not Officer McMullen, is a distinction of no
legal significance in this case. The probable cause to search incident to arrest was lawfully
conveyed from Officer McMullen to Detective Carpenter, because “it is not necessary for the
officers actually making the arrest or conducting the search to be personally aware of those
facts.” Lawson v. Commonwealth, 55 Va. App. 549, 555 n.2, 687 S.E.2d 94, 97 n.2 (2010)
(quoting White v. Commonwealth, 24 Va. App. 234, 240, 481 S.E.2d 486, 489 (1997)).
       5
           We are unaware of any restriction upon law enforcement officers that would prevent
multiple searches incident to arrest. See, e.g., United States v. Edwards, 415 U.S. 800, 804-05,
808-09 (1974) (upholding, as incident to arrest, the seizure and search of an arrestee’s clothing,
which was taken from him after he had spent the night in jail), quoted with approval in Williams
v. Commonwealth, 259 Va. 377, 385-86, 527 S.E.2d 131, 135-36 (2000); Curd v. City Court,
141 F.3d 839, 843 (8th Cir. 1998) (noting that “[t]he timeliness requirement for [searching]
‘luggage or other personal property not immediately associated with the person of the arrestee’ is
. . . constitutionally fairly strict” but that “searches of the person and [immediately associated]
articles . . . are measured with a different, more flexible constitutional time clock” (emphasis
added) (quoting United States v. Chadwick, 433 U.S. 1, 15 (1977))).

                                                -7-
                                  C. Search of Purvis’s Vehicle

       Officer McMullen’s search of Purvis’s vehicle is justified not as a search incident to

arrest,6 but because Purvis granted Officer McMullen permission to search his vehicle. Purvis

argues that this permission was tainted because, “McMullen lacked reasonable suspicion that

[Purvis] was engaged in criminal activity at that time” and, thus, Purvis was under an illegal

detention. We do not agree.

       As we have already determined, Officer McMullen had objective probable cause to arrest

Purvis. Accordingly, while Purvis may have been in custody when he gave consent to search his

vehicle, he gave that consent during a lawful seizure rather than an unlawful one. See 4 Wayne

R. LaFave, Search and Seizure § 8.2(b), at 92 (5th ed. 2012) (stating that where police have

sufficient legal grounds for a seizure, “the consent is not cast into doubt merely because the

police nonetheless pursued the consent alternative instead of making the seizure and then

conducting the investigation incident thereto”). Consent, to be effective, “must be voluntarily

given.” Elliott v. Commonwealth, 61 Va. App. 48, 54, 733 S.E.2d 146, 149 (2012). Whether

consent is voluntary “is a question of fact to be determined from all the circumstances.” Bay, 60

Va. App. at 535, 729 S.E.2d at 775 (quoting Ohio v. Robinette, 519 U.S. 33, 40 (1996)). The

Commonwealth must prove voluntariness by a preponderance of the evidence. Gray v.


       6
          The search of an arrestee’s vehicle no longer follows an arrest automatically, as a search
incident to arrest. In Arizona v. Gant, 556 U.S. 332 (2009), the Supreme Court held that officers
were permitted to conduct a warrantless search of a vehicle incident to arrest “only when (1) the
arrestee is ‘within reaching distance of the vehicle’ during the search, or (2) ‘it is reasonable to
believe the vehicle contains evidence of the offense of arrest.’” Rivera v. Commonwealth, 65
Va. App. 379, 385, 778 S.E.2d 144, 147-48 (2015) (quoting Gant, 556 U.S. at 346). This
holding overruled, in part, the Supreme Court’s decision in New York v. Belton, 453 U.S. 454
(1981), “which held that ‘when a policeman has made a lawful custodial arrest of the occupant of
an automobile, he may, as a contemporaneous incident of that arrest, search the passenger
compartment of that automobile.’” Id. (quoting Belton, 453 U.S. at 459-60). In this instance, we
have the consent of Purvis to search the vehicle, and need not assess this search as a search
incident to arrest.

                                               -8-
Commonwealth, 233 Va. 313, 327, 356 S.E.2d 157, 164 (1987). “The mere fact that a defendant

is in custody is not enough in itself to demonstrate a coerced consent to search.” Id. Rather, it is

one fact among many that a court examines when it looks at “the totality of all the

circumstances.” Id. (quoting Schneckloth v. Bustamonte, 412 U.S. 218, 227 (1973)).

       At best (for Purvis), Officer McMullen implied that he might not charge Purvis with

driving on a suspended license if Purvis consented to a search, but “promises have generally

been found insufficient to overbear a defendant’s free will.” Rodgers v. Commonwealth, 227

Va. 605, 616, 318 S.E.2d 298, 304 (1984). In United States v. Watson, 423 U.S. 411, 424

(1976), the Supreme Court discussed some of the factors at play in an analysis of consent:

               There was no overt act or threat of force against Watson proved or
               claimed. There were no promises made to him and no indication
               of more subtle forms of coercion that might flaw his judgment. He
               had been arrested and was in custody, but his consent was given
               while on a public street, not in the confines of the police station.
               Moreover, the fact of custody alone has never been enough in itself
               to demonstrate a coerced confession or consent to search.

See also LaFave, supra, § 8.2(b) (discussing factors for determining voluntariness of consent).

       Some evidence at the suppression hearing was uncontradicted. The encounter occurred

on the street, not in the station house. Only one officer interacted with Purvis, at least until after

the consent was obtained. Nothing indicates that any law enforcement officer drew a gun or

even raised a voice, or that anyone threatened Purvis in any way or asked him multiple times for

consent. Other evidence, specifically that surrounding consent, was contested. Officer

McMullen testified that Purvis gave consent for the search and did so before he exited the car,

but Purvis testified that he did not give such consent and was handcuffed as soon as he exited the

car. The trial court expressly resolved this conflict regarding consent against Purvis, announcing

that “the contest of credibility has been won by the officers and not by Mr. Purvis.” Thus, the

evidence, viewed under the appropriate legal standard, established that Purvis consented to the

                                                 -9-
search and was not in handcuffs when he did so. Later, the trial court said: “I do believe that

they can ask for consent to search a car . . . .” Implicit in this factual finding is an

acknowledgment that the consent was given voluntarily. The evidence, viewed in the light most

favorable to the Commonwealth, supports this factual finding of the trial court by a

preponderance.

                                           III. CONCLUSION

        The trial court did not err when it denied Purvis’s motion to suppress. The search of

Purvis’s person was justified as a search incident to arrest, and the search of Purvis’s vehicle was

consensual. Since both the search of the vehicle and the search of Purvis’s person were

reasonable, the search of Purvis’s home by way of a search warrant based on the fruits of the

roadside searches was valid as well.7 We thus affirm Purvis’s conviction.

                                                                                           Affirmed.




        7
            See supra note 1.

                                                 - 10 -
